EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of June 22, 2006, between Bank of America, N.A., as
seller (the "Seller" or ("Bank of America"), and Banc of America Commercial
Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the
"Mortgage Loan Schedule") except that the Seller will retain the master
servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in
its capacity as Master Servicer (as defined below) and shall enter into certain
Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling
and Servicing agreement (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans transferred by 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 and (iii) certain
mortgage loans transferred by 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 XxXxxx-Xxxx Companies, Inc. and/or
Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of June 1, 2006 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, as master servicer (the
"Master Servicer"), LNR Partners, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as trustee (in such capacity,
the "Trustee") and as REMIC administrator. Capitalized terms used but not
otherwise defined herein have the respective meanings assigned to them in the
Pooling and Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("BAS"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), Barclays
Capital Inc. ("BCI"), Xxxxxxx, Xxxxx & Co. ("Goldman"), Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") and Greenwich Capital Markets, Inc. ("Greenwich"
and, collectively with BAS, Bear Xxxxxxx, BCI, Goldman and Xxxxxx Xxxxxxx, the
"Underwriters") pursuant to an underwriting agreement, dated as of June 22, 2006
(the "Underwriting Agreement"). BACM intends to sell the remaining Classes of
Certificates (the "Non-Registered Certificates") to BAS, Bear Xxxxxxx and BCI,
as initial purchasers (collectively, the "Initial Purchasers"), pursuant to a
certificate purchase agreement, dated as of June 12, 2006 (the "Certificate
Purchase Agreement"), among BACM, BAS, Bear Xxxxxxx and BCI. The Registered
Certificates are more fully described in the prospectus dated June 12, 2006 (the
"Basic Prospectus"), and the supplement to the Basic Prospectus dated June 12,
2006 (the "Prospectus Supplement"; and, together with the Basic Prospectus, the
"Prospectus"), as each may be amended or supplemented at any time hereafter. The
privately offered Non-Registered Certificates are more fully described in a
private placement memorandum, dated June 12, 2006 (the "Memorandum"), as it 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 June 22, 2006 (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 an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans on or after the Cut-off
Date (including the Interest Deposit Amount) and which amount shall be payable
on or about June 22, 2006 in immediately available funds. The Purchaser shall be
entitled to all interest accrued on the Mortgage Loans on and after the Cut-off
Date and all principal payments received on the Mortgage Loans after the Cut-off
Date except for principal and interest payments due and payable on the Mortgage
Loans on or before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights).
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, 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 documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) 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.
(e) 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(c). If the Seller
cannot so deliver, or cause to be delivered, as to any Mortgage Loan, the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi), (viii) and (x) of the definition of "Mortgage File"
in the Pooling and Servicing Agreement, with evidence of recording or filing (if
applicable, and as the case may be) thereon, solely because of a delay caused by
the public recording or filing office where such document or instrument has been
delivered for recordation or filing, as the case may be, so long as a copy of
such document or instrument, certified by the Seller as being a copy of the
document deposited for recording or filing, has been delivered, and then subject
to the requirements of Section 4(d), the delivery requirements of Section 2(c)
shall be deemed to have been satisfied as to such missing item, and such missing
item shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) 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(c) 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 countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) 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.
(i) 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 Files and Due Diligence Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a national banking association, duly authorized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings and recordings of Mortgage Loan documents and assignments thereof
that are contemplated by the Pooling and Servicing Agreement to be
completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such 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 or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, 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 Code, (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 Regulations Section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan, servicing released basis. The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
Notwithstanding the foregoing, the applicable Seller shall have an
additional 90 days to cure such Material Document Defect or Material Beach,
provided that the Seller has commenced and is diligently proceeding with the
cure of such Material Document Defect or Material Breach and such failure to
cure is solely the result of a delay in the return of documents from the local
filing or recording authorities.
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
Cross-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 Cross-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 Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-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 Cross-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, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 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 Cross-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 Cross-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, 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.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
November 6, 2006, the Seller shall reconfirm its obligation to complete
such Mortgage File and to correct all deficiencies associated therewith,
and, if it fails to do so within 45 days after its receipt of such notice,
the Seller shall deliver to the Purchaser or its designee a limited power
of attorney (in a form reasonably acceptable to the Seller and the
Purchaser) permitting the Purchaser or its designee to execute all
endorsements (without recourse) and to execute and, to the extent
contemplated by the Pooling and Servicing Agreement, record all
instruments or transfer and assignment with respect to the subject
Mortgage Loan, together with funds reasonably estimated by the Purchaser
to be necessary to cover the costs of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties under
the Pooling and Servicing Agreement for any out-of-pocket costs and
expenses resulting from the Seller's failure to deliver all documents
required to be part of such Mortgage File on the Closing Date; and
(v) the Seller shall otherwise use commercially reasonable efforts
to cooperate with the Purchaser and any parties under the Pooling and
Servicing Agreement in any remedial efforts for which a Document Defect
with respect to such Mortgage File would otherwise cause a delay.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any serviced Companion Loan that is deposited into another
securitization, the depositor for such other securitization) and the Trustee
with any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining to
information required by Regulation AB attached to the Pooling and Servicing
Agreement, within the time periods set forth in Article XI of the Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or a
"due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Purchaser of the transactions
contemplated herein, except for those consents, approvals, authorizations
and orders that previously have been obtained and those filings and
registrations that previously have been completed, and except for those
filings of Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed after
the Closing Date.
(iii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this agreement by the
Purchaser, will not violate the Purchaser's certificate of incorporation
or by-laws or constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in
the breach of, any material agreement or other instrument to which it is a
party or which is applicable to it or any of its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally, and (B) general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Deloitte Touche Tohmatsu
(the "Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Comptroller of the Currency, dated not earlier than 30 days prior to the Closing
Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers and each
Rating Agency 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., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 20th Floor, NC1-007-20-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to
Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bank of America, N.A., 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx, Esq., Assistant
General Counsel, at Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
20th Floor, NC1-007-20-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to Xxxxx X.
XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202) or to such other addresses as may
hereafter be furnished to the Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO 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. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed
to be made hereby shall be, and be construed as a sale by the Seller of all of
the Seller's right, title and interest in and to the Mortgage Loans. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, as the case may be. However, in the event that notwithstanding the
intent of the parties, the Mortgage Loans are held to be property of the Seller,
or if for any reason this Agreement is held or deemed to create a security
interest in the Mortgage Loans, then it is intended that, (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the New York Uniform Commercial Code and the Uniform Commercial Code of any
other applicable jurisdiction; and (ii) the conveyance provided for in this
Section shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of its right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired, in and to
(A) the Mortgage Notes, the Mortgages, any related insurance policies and all
other documents in the related Mortgage Files, (B) all amounts payable to the
holders of the Mortgage Loans in accordance with the terms thereof (other then
scheduled payments of interest and principal due on or before the Cut-off Date)
and (C) all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, whether in the
form of cash, instruments, securities or other property. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. In connection herewith, the Purchaser shall have all of
the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Principal
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan Number Loan Seller Property Name
-------- ----------- ----------- ------------------------------------------------------
1 3400002 BofA 000 Xxxx Xxxxxxx Xxxxxx
2 3219704 XxxX Xxxxxxxx Xxxx
0 00000 XxxX Desert Passage
4.1 59814 BofA Xxxxxx Xxxxx Xxxxx - Wilmette
4.2 59814 BofA Herberger's - Roseville
4.3 59814 BofA Younkers - Grandville
4.4 59814 BofA Xxxxxx Xxxxx Xxxxx - Xxxxxx Hills
4.5 59814 BofA Boston Store - Racine
4.6 59814 BofA Younkers - Des Moines
4.7 59814 BofA Herberger's - Saint Cloud
4.8 00000 XxxX Xxxxxx Xxxxx Xxxxx - Xxxx Xxxxxx
4.9 59814 BofA Younkers - Duluth
4.1 59814 BofA Xxxxxxx'x - Xxxxxxxxxxx
4.11 59814 BofA Younkers - West Des Moines
4.12 59814 BofA Younkers - Coralville
4 59814 BofA Bon-Ton Department Stores Portfolio (Rollup)
5 59729 BofA 000 Xxxx 00xx Xxxxxx
7 3400081 XxxX Xxxxxxx Xxxx
0 0000000 BofA Savannah Xxxxxxxx
00 00000 XxxX Xxxxxxxx Xxxxx
00 00000 XxxX Sports Club LA
12 59711 XxxX 0 Xxxxxxxxx Xxxxxx
00 00000 XxxX 000 Xxxx Xxxxxx
14 3219706 XxxX Xxxxxx Xxxx
00 00000 XxxX Xxxxxxxx Xxxx Commons
17 17917 XxxX Xxxxxxxxx Xxxxxx Xxxxxx
00 00000 XxxX Belk Headquarters
20 58693 XxxX Xxxxxx Xxxxxxx Xxxxx XX
00 00000 BofA Summit at Madison Park
22.1 59666 BofA Sherwood Apartments
22.2 59666 BofA Winding Wood Apartments
22 59666 BofA Sherwood Apartments & Winding Wood Apartments (Rollup)
23 59820 XxxX Xxx Xxxxxxxx
00 00000 XxxX XXX Xxxxxxxxxxxx
00 00000 XxxX Xxxxxxxxx by Xxxxxxxx Xxxxxxxxx
00 00000 XxxX Xxxxxxxxxxx Office Building
32 3400063 XxxX Xxxx Xxxxxxx Xxxxxxxx
00 00000 XxxX Xxxxxx Xxxxx
00 00000 XxxX Columbia Trails Apartments
35 59724 BofA Xxxxxxx Xxxxxx Xxxxx Xxxxx & Xxxxxx
00 00000 XxxX 000 Xxxxxxx Xxxxxx
38 58148 XxxX Xxxx Xxxx Xxxx Xxxxxx
00 00000 XxxX Fortunoffs of Xxxxxxx
00 00000 XxxX Parkway Xxxxx
43.1 17801 XxxX Xxxxxxxxxx
00.0 00000 XxxX Pelham at Xxxxxx
00 00000 XxxX Brookfield-Pelham (Rollup)
44 59266 BofA Falcon Gateway
45 58607 XxxX Xxxxxx Xxxxxxxxxx
00 00000 XxxX Xxxxxxx Xxxxxx Xxx & Xxxxxx
00 00000 XxxX Heritage Xxxxxxxxxxx
00 00000 XxxX Summerfield Crossings (9)
50 59434 XxxX Xxxx - Xxxxxxxxx Xxxx
00 00000 XxxX Xxxxx Xxxxxxxx Xxxxx
00 00000 XxxX 000-000 Xxxxxxxx
54 10289 XxxX Xxxxx Xxxxxx
00 00000 XxxX National Association of Letter Xxxxxxxx Xxxxxxxx
00 00000 XxxX 000 Xxxx Xxxxxx Xxxxx
58 59721 XxxX Xxxxx Xxxxxxxx Xxxxx
00 00000 XxxX Hoods Crossroads
62 59782 BofA Long Shoals
Subtotal Crossed Loans
63 17438 XxxX Xxxxxxxx Xxxxxxxx Xxxx
00 00000 XxxX 000 Xxxx 00xx Xxxxxx
65 17160 XxxX Xxxxxxx Xxxxxx Xxxxxx
00 00000 XxxX Xxxxx 360 Media Center
68 17465 BofA Arden Medical Office Building
69.1 59649 BofA Xxxxxxx Apartments - 1700 Xxxxxx
69.2 59649 BofA Xxxxxxx Apartments - 0000 Xxxxxx Xxx
69.3 59649 XxxX Xxxxxxx Xxxxxxxxxx - 0000 Xxxxxxx Xxxxxx
69 59649 XxxX Xxxxxxx Xxxxxxxxxx (Xxxxxx)
00 00000 XxxX Xxxxxxx - 000 Xxxxxxxxxx Xx
Subtotal Crossed Loans
71 13139 BofA Greenhouse Square
73 17886 BofA Solon Place Apartment Homes
74 17890 BofA Xxxxxxx Place
Subtotal Crossed Loans
76 16072 XxxX Xxxxx Xxxxxxxx
00 00000 XxxX FedEx Xxxxxxxxx Xxxxxxxx
00 00000 XxxX Parkway Medical Center
81 14954 BofA Eastland Communities
82.1 59467 BofA Xxxxxxx Road-Sterling - College Plaza
82.2 59467 BofA Xxxxxxx Road-Sterling - Manteca Plaza
82.3 59467 BofA Xxxxxxx Road-Xxxxxxxx - Xxxxxx Ranch Pads
82 59467 BofA Xxxxxxx Road-Sterling (Rollup)
83 9633 XxxX Xxxxxxx Xxxx Xxxxxxxxxx
00 00000 XxxX XX Xxxxxxxxx Xxxxxxxx
00 00000 XxxX Xxxxxxxx Xxxxxxx
00 00000 XxxX Xxxxxxxxxx - XX Maxx
88 59202 BofA Marriott Residence Inn-Xxxx
89 59203 BofA Marriott Fairfield Inn Suites-Xxxx
Subtotal Crossed Loans
92 15779 XxxX Xxxxx Xxxx
00 00000 XxxX 000 Xxxxx 59
97 59667 BofA Bank of America at Avenue U
98 59651 BofA Walgreens - Xxxxxx
00 00000 XxxX Xxxxxxxx Shopping Center
100 16734 BofA Centro Cubano Shopping Center
Subtotal Crossed Loans
101 59642 BofA Atlas Self Storage
102 59778 BofA Club at Lake Xxxxxxx Apartments
103 59788 XxxX Xxxx Xxxxxx Xxxxxxx
000 00000 XxxX Ridgewood Apartments
105 59720 XxxX Xxxxxxxxxx Xxxx Xxxxxxxxxx
000 00000 XxxX Xxxxxxxx Xxxxx
000 00000 XxxX Xxxx Xxxxxx 0
000 00000 XxxX Xxxxxxxx Festival Plaza
113 59732 BofA Crossroads - Linens N Things
115 17207 BofA Lockaway Storage-Riverside
116 59734 BofA Crossroads - Best Buy
117 14898 XxxX Xxxxx Xxxxxxx
000 00000 XxxX Xxxxx Drive Retail
122 15908 BofA Xxxxxxx Xxxxxxxx
000 00000 XxxX XXX Friday's Plaza
124 59730 XxxX Xxxxxxxxxx - Xxxxxxx
000 00000 XxxX Xxxxxxx Xxxxx Xxxxxxx Xxx.
000 00000 XxxX Xxxxxxx Xxxxx Xxxxxxxxxx
000 00000 XxxX Cranberry Business Center
129 14237 BofA Xxxxxx and Xxxxxxx Xxxxx
000 00000 XxxX Xxxxxxxxxx - XxxXxxxx
132 00000 XxxX Xxxxx Xxxxxxxx Retail Center
133 17989 BofA Broadmoor Trotwood
136 17648 BofA North Wake Mini Storage
137 17447 XxxX Xxxxxx Xxxxxx
000 00000 XxxX Xxxxxxxx Self Storage
141 18072 XxxX Xxxxxxxx Xxxxxx
000 00000 XxxX National Storage Center-Vancouver
144 59709 BofA Gresham Mini Storage
146 16548 XxxX Xxxxxx Xxxxx Xxxxx
000 00000 XxxX Clearwater Self Storage
148 59656 XxxX Xxxx Xxxx Xxxxxxxxxx & Xxxx-Xxxxxxx
000 00000 BofA Windmill Center
151 17997 XxxX Xxxxx Xxxxxxx
000 00000 XxxX University Xxxxx Apartments
153 17749 XxxX Xxxx Xxxxxxxxxx
000 00000 XxxX Secured Storage Vegas
155 17750 BofA Discount Mini Storage North
156 16858 BofA Xxxxxxx Square Mall
157 17326 XxxX Xxx Xxxxxxx Xxxxxxxxxx
000 00000 XxxX The Shops on Sedona Row
159 17124 XxxX Xxxxxxx Xxxxx
000 00000 XxxX Sovereign Bank-Newington
Totals
Sequence Street Address
-------- ----------------------------------------------------------------------------------------------------
1 000 Xxxx Xxxxxxx Xxxxxx
2 000 Xxxxx Xxxxx Xxxxx Xxxx
3 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
4.1 0000 Xxxx Xxxxxx
4.2 600 Rosedale Shopping Center
4.3 0000 Xxxxxxxxx Xxxxxxx
4.4 3 Hawthorne Center
4.5 0000 Xxxxxx Xxxxxx
4.6 0000 Xxxxx Xxx Xxxx
4.7 000 Xxxx Xxxxx Xxxxxxx Xxxxxx
4.8 0000 Xxxxxx Xxxx Xxxx
4.9 1600 Xxxxxx Trunk Highway
4.1 0000 Xxxxxx Xxxxxx
4.11 000 Xxxxxx Xxxxx Xxxxxxx
4.12 0000 Xxxxx Xxxxx Xxxxxx
4 Various
5 000 Xxxx 00xx Xxxxxx
7 4 South Market Building
8 000 Xxxxxxx XxXxxxxx Xxxxxxxxx
10 000 Xxxxxxxxx Xxxxx
00 0000 Xxxxx Xxxxxxxxx Boulevard
12 0000 Xxxxxxxxx Xxxxx
13 000 Xxxx Xxxxxx
14 0000 Xxxx Xxxxxx Xxxxxx
00 000-000 South Xxxxxxxxx Boulevard, 0000-0000 Xxxx Xxxxxxxx Xxxxxx, and 7740-7986 Xxxx Xxxxxxx Xxxxxx
00 000 Xxxxxxxxx Xxxxxx
18 0000 Xxxx Xxxxxx Xxxx
20 8211 - 0000 Xxxxxx Xxxxxxxxx
21 0000 Xxxx Xxxxxxx Xxxxxx
22.1 0000 Xxxxxxxx Xxxxx and 0000-0000 Xxxxxxxxxxxxxx Xxxx
22.2 0000 Xxxxx Xxxxxx
22 Various
23 40020, 40032 & 40080 Highway 49
29 29903 Xxxxxx Xxxx
00 0000 Xxxx Xxx Xxxxxx
00 00000, 15641, 00000 Xxx Xxxx Xxxxxx
32 300 M.A.C. Avenue
33 000 Xxxxxx Xxxxxx
34 0000 XX 00xx Xxxxxx
35 631 West Katella
36 000 Xxxxxxx Xxxxxx
38 0000 XX Xxxxxxxxx Xxxxxx
40 150 Route 00 Xxxxx
00 00000 Xxxx Xxxxx Parkway
43.1 000 Xxxxxxxxxx Xxxxxxx
43.2 7001, 7003 and 0000 Xxxxxx Xxxx
43 Various
44 0000-0000 XxXxxxxxx Xxxx
45 00000 XX Xxxxxxxx Xxxxxxx
46 1600 Xxxxx Xxxxxx Xxxxxxxxx
00 00000, 28023, 28031, 28039, 28047 & 00000 Xxxxx Xxxx
00 00000 X.X. Xxxxxxx 301
50 000 Xxxxxx Xxxx Xxxx
00 0000-0000 X. Xxxxxxxx
52 000-000 Xxxxxxxx
54 00000 XX 000xx Xxxxxx
00 00000 Xxxxxxx Court
57 000 Xxxx Xxxxxx Xxxxx
58 000 Xxxxxxx Xxxxxx
61 3501 - 3607 Xxxxxxxx-Xxxx Xxxx Xxxx
00 0 Xxxx Xxxxxx Xxxx
63 00 Xxxxxx Xxxxxx
64 000 Xxxx 00xx Xxxxxx
65 0000 Xxxxxxx Xxxxxx Xxxxxxxxx
66 2701 Media Center Drive
68 000 Xxxxx Xxxxxx
69.1 0000 Xxxxxx Xxx
69.2 0000 Xxxxxx Xxx
69.3 0000 Xxxxxxx Xxxxxx
69 Various
70 000 Xxxxxxxxxx Xxxx
71 16040-16220 SE 82nd Avenue
73 1000 Solon Xxxxx Xxx
00 0000 Xxxxx Xxxxxxx Xxxxxx
00 0000-0000 Merced Street and 0000 Xxxxxxx Xxxxx
77 0000 Xxxxxxx Xxxxx
78 000 Xxxx Xxxx Xxxxxx
00 0000-0000, 1286-1308, 1318-1340, 1346-1368, 1372-1394 (even #'s only) Xxxxxx Avenue
82.1 0000 X. Xxxxxxx Xxxxxxxxx
82.2 0000 Xxxxxxxxxx Xxxxx Xxx
82.3 000 Xxxxxxx Xxxxxx Xxxx & 0000 Xxxxxxx Xx
82 Various
83 0000 Xxxxx Xxxx
85 00000 Xx. Xxxx Xxxx
86 0000 Xxxxxxxx Xxxxxx XX
87 0000 Xxxxx Xxxxxxx Xxxx
88 87 Xxxx Town Drive
89 83 Troy Xxxx Xxxxx
00 0000 Xxxx Xxxxx Industrial Loop
00 000 Xxxxx 00
00 2016-2022 Avenue X
00 0000 Xxxxxxxx Xxxx
99 00000 XX 0xx Xxxxxx
100 1101 NW 22 Avenue
101 4511 Riviera Xxxxxx Xxxxxx
000 0000 Xxxx Xxxxx Xxxxx
103 22301-22661 Xxxxxxx Xxxxxx
000 00000 Xxxxxxxxxxxx Xxxx
105 0000 Xxxxx Xxxxxx
108 255, 267 & 000 Xxxxxxxx Xxxxx
109 627 - 000 Xxxxxxxxx Xxxxx
000 0000 Xxxxx Xxxxxxxx
113 0000 Xxxxx Xxxxxxx Xxxx
115 749 North Xxxx Xxxxxx
000 0000 Xxxxx Xxxxxxx Xxxx
000 0000 Xxxxx Xxxx
120 210 Xxxxx Drive
000 0000-0000 Miramar Rd
123 620 Scranton Carbondale Xxxxxxx
000 0000 Xxxxx Xxxxxxx Xxxx
125 6710 Xxxx Xxxxxxx Xxxxxx
000 00000 Xxxx Xxxxxxxx
128 0000 Xxxxxxxxxx Xxxx
129 5889 - 0000 Xxxxxx Xxxxxx
130 2306 South Xxxxxxx Xxxx
000 0000-0000 Xxxxx Xxxxxxxx
133 000 Xxxxxx Xxxxxx
136 000 X. Xxxx Xxxxxx and 10306 Xxxxx Xxxx Xxxx
000 000-000 Xxxxxx Xx.
138 3627 Xxxxx Road
141 7411 & 0000 Xxxxxxxx Xxx
143 5820 NE 8th Court
144 0000 Xxxxxxxxx Xxxxxxxx Xxxxxx
146 3500 Highway 34
147 18524 US Xxxxxxx 00 Xxxxx
000 0000-0000 Xx. Xxxxxx Avenue and 0000 Xxxxx Xxxxxx
150 0000 Xxxxxxxx Xxxxxx East
151 0000 Xxx Xxxxx Xxxxxxxxx
152 2513 X. 0xx Xxxxxx
000 00000 Humboldt Drive
154 2608 Xxxxx Road
155 0000 Xxxx Xxxxxxxxxxxx Xxxxxx
156 13710-13730 XX 00 Xxxxxx
000 0000 Xxxxxxxxx Xxxxxxxxx
158 0000 Xxx Xxxxx Xxxxx XX
159 000-000 Xxxxx Xxxx Xxxxxx
160 3237 Berlin Turnpike
Sequence City State Zip Code Mortgage Rate(1) Amortization Basis(2) Original Balance
-------- ------------------ ------- -------- ----------------- ---------------------- ----------------
1 Xxxxxxx XX 00000 6.033% Actual/360 $206,000,000
2 Xxxxxxxxxx XX 00000 5.794% Actual/360 $168,000,000
3 Xxx Xxxxx XX 00000 5.464% Actual/360 $131,883,333
4.1 Xxxxxxxx XX 00000 $16,990,000
4.2 Xxxxxxxxx XX 00000 $15,323,000
4.3 Xxxxxxxxxx XX 00000 $13,020,000
4.4 Xxxxxx Xxxxx XX 00000 $11,433,000
4.5 Xxxxxx XX 00000 $10,798,000
4.6 Xxx Xxxxxx XX 00000 $10,480,000
4.7 Xxxxx Xxxxx XX 00000 $10,115,000
4.8 Xxxx Xxxxxx XX 00000 $10,083,000
4.9 Xxxxxx XX 00000 $10,004,000
4.1 Xxxxxxxxxxx XX 00000 $7,860,000
4.11 Xxxx Xxx Xxxxxx XX 00000 $7,066,000
4.12 Xxxxxxxxxx XX 00000 $6,828,000
4 Various Various Various 6.213% Actual/360 $130,000,000
5 Xxx Xxxx XX 00000 5.819% Actual/360 $100,000,000
7 Xxxxxx XX 00000 5.570% Actual/360 $98,000,000
8 Xxxxxxxx XX 00000 6.232% Actual/360 $82,725,000
10 Xxxxxxx XX 00000 5.894% Actual/360 $63,650,000
11 Xxx Xxxxxxx XX 00000 6.480% Actual/360 $60,000,000
12 Xxxxxxxx XX 00000 5.382% Actual/360 $54,600,000
13 Xxx Xxxx XX 00000 4.495% Actual/360 $50,000,000
14 Xxxxxxxxxxxx XX 00000 5.834% Actual/360 $47,500,000
15 Xxxxxxxx XX 00000 5.950% Actual/360 $42,500,000
17 Xxxxxxx XX 00000 5.871% Actual/360 $40,000,000
18 Xxxxxxxxx XX 00000 5.591% 30/360 $34,645,000
00 Xxx Xxxxx XX 00000 5.063% Actual/360 $34,000,000
21 Xxxxxxx XX 00000 5.580% Actual/360 $29,000,000
22.1 Xxxxxxxxx XX 00000 $20,635,514
22.2 Xxxxxxxxx XX 00000 $6,964,486
22 Xxxxxxxxx XX 00000 5.603% Actual/360 $27,600,000
23 Xxxxxxxx XX 00000 5.966% Actual/360 $27,150,000
29 Xxxxxx Xxxxx XX 00000 5.908% Actual/360 $22,313,077
30 Xxxxxxxxx XX 00000 5.824% Actual/360 $20,580,000
31 Xxxxxx XX 00000 5.984% Actual/360 $19,640,000
00 Xxxx Xxxxxxx XX 00000 6.252% Actual/360 $18,825,000
00 Xxxxx Xxxx XX 00000 5.679% Actual/360 $18,500,000
34 Xxxxxxx XX 00000 5.000% Actual/360 $18,000,000
35 Xxxxxxx XX 00000 5.546% Actual/360 $16,760,000
36 Xxxxxx XX 00000 5.652% Actual/360 $16,000,000
38 Xxxxxxxx XX 00000 5.555% Actual/360 $15,000,000
40 Xxxxxxx XX 00000 5.748% Actual/360 $14,000,000
42 Xxxxxxx XX 00000 5.576% Actual/360 $13,517,560
43.1 Xxxxxxx XX 00000 $6,566,857
43.2 Xxxxxxxxxx XX 00000 $6,433,143
43 Various SC Various 5.759% Actual/360 $13,000,000
44 Xxxx XX 00000 5.388% Actual/360 $13,000,000
45 Xxxxxxx XX 00000 5.000% Actual/360 $13,000,000
46 Xxxxxxx XX 00000 5.546% Actual/360 $12,750,000
47 Xxxxxxxx XX 00000 6.080% Actual/360 $12,588,207
49 Xxxxxxxxx XX 00000 5.293% Actual/360 $12,400,000
50 Xxxxxxxxx XX 00000 5.688% Actual/360 $11,057,986
51 Xxxxx Xxxxx XX 00000 5.622% Actual/360 $11,000,000
52 Xxx Xxxx XX 00000 5.553% Actual/360 $11,000,000
54 Xxxxx XX 00000 6.130% Actual/360 $10,369,000
55 Xxxxxxx XX 00000 6.112% Actual/360 $10,250,000
57 Xxx Xxxx XX 00000 5.424% Actual/360 $10,000,000
58 Xxxxxxxx XX 00000 5.490% Actual/360 $10,000,000
61 Xxxx Xxxx XX 00000 5.932% Actual/360 $6,840,000
62 Xxxxx XX 00000 5.932% Actual/360 $3,100,000
$9,940,000
63 Xxxxxxxx XX 00000 6.048% Actual/360 $9,922,000
64 Xxx Xxxx XX 00000 5.553% Actual/360 $9,000,000
00 Xxxxxxx Xxx XX 00000 5.812% Actual/360 $9,000,000
66 Xxx Xxxxxxx XX 00000 5.887% Actual/360 $8,520,000
68 Xxxxxxxx XX 00000 5.833% Actual/360 $8,500,000
69.1 Xxxxxxxx XX 00000 $3,639,781
69.2 Xxxxxxxx XX 00000 $2,893,776
69.3 Xxxxxxxx XX 00000 $1,281,443
69 Xxxxxxxx XX 00000 5.599% Actual/360 $7,815,000
70 Xxxxxxxxxx XX 00000 5.719% Actual/360 $565,000
$8,380,000
71 Xxxxxxxxx XX 00000 5.288% Actual/360 $8,400,000
73 Xxxxxxxxxx XX 00000 6.237% Actual/360 $6,170,000
74 Xxxxx XX 00000 6.237% Actual/360 $1,775,000
$7,945,000
76 Xxx Xxxxxxx XX 00000 5.950% Actual/360 $7,769,400
77 Xxxxxx XX 00000 5.781% Actual/360 $7,680,000
78 Xxxxxxxxxx XX 00000 5.709% Actual/360 $7,600,000
81 Xxxxxxx XX 00000 6.205% Actual/360 $7,100,000
82.1 Xxx Xxxxx XX 00000 $3,318,884
82.2 Xxxxxxx XX 00000 $2,099,016
82.3 Xxxxxxxx XX 00000 $1,632,100
82 Various CA Various 5.517% Actual/360 $7,050,000
83 Xxxxxxx XX 00000 5.887% Actual/360 $7,000,000
85 Xxxxxxxx XX 00000 5.768% Actual/360 $6,730,000
86 Xxxxxxx XX 00000 5.797% Actual/360 $6,560,000
87 Xxxxx Xxxxx XX 00000 5.680% Actual/360 $6,380,000
88 Xxxx XX 00000 6.094% Actual/360 $4,055,365
89 Xxxx XX 00000 6.094% Actual/360 $2,221,442
$6,276,807
92 Xxxxxxxxxx XX 00000 5.656% Actual/360 $6,116,000
95 Xxxxxxx XX 00000 6.111% Actual/360 $5,682,409
97 Xxxxxxxx XX 00000 5.485% Actual/360 $5,400,000
98 Xxxxxx XX 00000 5.655% Actual/360 $5,350,000
99 Xxxxx XX 00000 5.808% Actual/360 $3,300,000
000 Xxxxx XX 00000 5.808% Actual/360 $2,000,000
$5,300,000
000 Xxx Xxxxx XX 00000 5.606% Actual/360 $5,285,000
000 Xxxxxxxxxxx XX 00000 5.700% Actual/360 $5,200,000
000 Xxxxxxxxxx XX 00000 5.367% Actual/360 $5,200,000
000 Xxxxxxxx XX 00000 5.785% Actual/360 $5,175,000
000 Xxxxxxxxxxx XX 00000 5.754% Actual/360 $5,120,000
000 Xxxxx XX 00000 5.883% Actual/360 $5,000,000
000 Xxxxxxx XX 00000 5.347% Actual/360 $4,950,000
000 Xxxxxxx XX 00000 5.891% Actual/360 $4,685,000
000 Xxxxx Xxxxx XX 00000 5.680% Actual/360 $4,450,000
000 Xxxxxxxxx XX 00000 6.009% Actual/360 $4,310,000
000 Xxxxx Xxxxx XX 00000 5.680% Actual/360 $4,270,000
000 Xxxx Xxxxx XX 00000 6.053% Actual/360 $4,230,000
000 Xxxxxxxxxx XX 00000 5.866% Actual/360 $4,175,000
000 Xxx Xxxxx XX 00000 5.816% Actual/360 $4,000,000
000 Xxxxxxx Xxxx XX 00000 5.645% Actual/360 $3,640,000
000 Xxxxx Xxxxx XX 00000 5.680% Actual/360 $3,600,000
125 Xxxxxxxx XX 00000 5.845% Actual/360 $3,500,000
127 Xxxxxxxx XX 00000 5.675% Actual/360 $3,465,113
000 Xxxxxxxxx Xxxxxxxx XX 00000 5.760% Actual/360 $3,410,000
000 Xxxxxxx XX 00000 6.051% Actual/360 $3,310,000
000 Xxxxx Xxxxx XX 00000 5.680% Actual/360 $3,300,000
000 Xxxxxx Xxxxx XX 00000 5.612% Actual/360 $3,200,000
000 Xxxxxxxx XX 00000 5.927% Actual/360 $3,120,000
000 Xxxx Xxxxxx XX 00000 5.913% Actual/360 $3,000,000
000 Xxxxxxxx XX 00000 5.813% Actual/360 $3,000,000
138 Xxxxxx XX 00000 5.733% Actual/360 $3,000,000
000 Xxxxxxxxxxxx XX 00000 6.113% Actual/360 $2,680,000
143 Xxxxxxxxx XX 00000 5.977% Actual/360 $2,650,000
144 Xxxxxxx XX 00000 6.217% Actual/360 $2,600,000
000 Xxxxxxxxxx XX 00000 6.171% Actual/360 $2,535,000
000 Xxxxxxxxxx XX 00000 5.761% Actual/360 $2,500,000
148 Xxxxxxxxxx XX 00000 5.830% Actual/360 $2,500,000
000 Xxxxxxxx XX 00000 5.723% Actual/360 $2,400,000
000 Xxxxxxxxx XX 00000 6.028% Actual/360 $2,200,000
000 Xxxx XX 00000 5.961% Actual/360 $2,036,000
000 Xxxx XX 00000 6.096% Actual/360 $2,030,000
000 Xxxxx Xxx Xxxxx XX 00000 5.978% Actual/360 $2,000,000
000 Xxxxx XX 00000 5.759% Actual/360 $2,000,000
000 Xxxxx XX 00000 5.585% Actual/360 $2,000,000
000 Xxxxxxxxxx XX 00000 6.110% Actual/360 $1,705,000
000 Xxxxxxxxxxx XX 00000 6.454% Actual/360 $1,555,000
000 Xxxxxxx XX 00000 6.277% Actual/360 $1,380,000
000 Xxxxxxxxx XX 00000 5.816% Actual/360 $1,100,000
Remaining Term To
Sequence Cut-off Date Balance Stated Maturity (months) Stated Maturity Date Due Date
-------- -------------------- ------------------------ -------------------- --------
1 $206,000,000 119 5/1/2016 1st
2 $168,000,000 120 6/1/2016 1st
3 $131,883,333 113 11/1/2015 1st
4.1 $16,945,354
4.2 $15,282,734
4.3 $12,985,786
4.4 $11,402,956
4.5 $10,769,625
4.6 $10,452,461
4.7 $10,088,420
4.8 $10,056,504
4.9 $9,977,711
4.1 $7,839,345
4.11 $7,047,432
4.12 $6,810,057
4 $129,658,386 118 4/1/2016 1st
5 $100,000,000 118 4/1/2016 1st
7 $97,802,947 82 4/1/2013 1st
8 $82,725,000 120 6/1/2016 1st
10 $63,650,000 119 5/1/2016 1st
11 $59,675,588 116 2/1/2016 1st
12 $54,600,000 109 7/1/2015 1st
13 $50,000,000 112 10/1/2015 1st
14 $47,500,000 120 6/1/2016 1st
15 $42,500,000 143 5/1/2018 1st
17 $40,000,000 120 6/1/2016 1st
18 $34,645,000 118 4/1/2016 1st
20 $33,570,735 109 7/1/2015 1st
21 $28,973,228 119 5/1/2016 1st
22.1 $20,635,514
22.2 $6,964,486
22 $27,600,000 118 4/1/2016 1st
23 $27,150,000 120 6/1/2016 1st
29 $22,294,132 119 5/1/2016 1st
30 $20,540,849 118 4/1/2016 1st
31 $19,640,000 118 4/1/2016 1st
32 $18,825,000 120 6/1/2016 1st
33 $18,500,000 118 4/1/2016 1st
34 $17,893,443 103 1/1/2015 1st
35 $16,726,122 118 4/1/2016 1st
36 $15,985,494 119 5/1/2016 1st
38 $14,865,076 111 9/1/2015 1st
40 $13,981,237 119 5/1/2016 1st
42 $13,517,560 118 4/1/2016 1st
43.1 $6,566,857
43.2 $6,433,143
43 $13,000,000 116 2/1/2016 1st
44 $13,000,000 112 10/1/2015 1st
45 $12,923,042 103 1/1/2015 1st
46 $12,724,228 118 4/1/2016 1st
47 $12,588,207 119 5/1/2016 1st
49 $12,400,000 117 3/1/2016 1st
50 $11,026,282 81 3/1/2013 1st
51 $11,000,000 117 3/1/2016 1st
52 $11,000,000 118 4/1/2016 1st
54 $10,360,697 119 5/1/2016 1st
55 $10,250,000 119 5/1/2016 1st
57 $10,000,000 116 2/1/2016 1st
58 $10,000,000 118 4/1/2016 1st
61 $6,834,229 119 5/1/2016 1st
62 $3,097,384 119 5/1/2016 1st
$9,931,613
63 $9,913,880 119 5/1/2016 1st
64 $9,000,000 118 4/1/2016 1st
65 $8,974,922 117 3/1/2016 1st
66 $8,520,000 118 4/1/2016 1st
68 $8,476,431 117 3/1/2016 1st
69.1 $3,639,781
69.2 $2,893,776
69.3 $1,281,443
69 $7,815,000 117 3/1/2016 1st
70 $565,000 117 3/1/2016 1st
$8,380,000
71 $8,334,624 113 11/1/2015 1st
73 $6,165,200 119 5/1/2016 1st
74 $1,772,838 119 5/1/2016 1st
$7,938,038
76 $7,769,400 117 3/1/2016 1st
77 $7,680,000 119 5/1/2016 1st
78 $7,567,755 92 2/1/2014 1st
81 $7,094,428 119 5/1/2016 1st
82.1 $3,318,884
82.2 $2,099,016
82.3 $1,632,100
82 $7,050,000 115 1/1/2016 1st
83 $6,986,868 118 4/1/2016 1st
85 $6,730,000 119 5/1/2016 1st
86 $6,547,446 118 4/1/2016 1st
87 $6,367,473 118 4/1/2016 1st
88 $4,052,086 119 5/1/2016 1st
89 $2,219,646 119 5/1/2016 1st
$6,271,732
92 $6,116,000 115 1/1/2016 1st
95 $5,682,409 120 6/1/2016 1st
97 $5,400,000 116 2/1/2016 1st
98 $5,327,070 116 2/1/2016 1st
99 $3,293,700 118 4/1/2016 1st
100 $1,996,182 118 4/1/2016 1st
$5,289,882
101 $5,269,562 117 3/1/2016 1st
102 $5,200,000 119 5/1/2016 1st
103 $5,188,652 119 5/1/2016 1st
104 $5,153,355 116 2/1/2016 1st
105 $5,115,477 119 5/1/2016 1st
108 $4,990,611 118 4/1/2016 1st
109 $4,917,653 114 12/1/2015 1st
111 $4,672,183 81 3/1/2013 1st
113 $4,441,263 118 4/1/2016 1st
115 $4,310,000 118 4/1/2016 1st
116 $4,261,616 118 4/1/2016 1st
117 $4,230,000 118 4/1/2016 1st
120 $4,157,802 116 2/1/2016 1st
122 $3,992,377 118 4/1/2016 1st
123 $3,640,000 116 2/1/2016 1st
124 $3,592,932 118 4/1/2016 1st
125 $3,493,373 118 4/1/2016 1st
127 $3,455,149 117 3/1/2016 1st
128 $3,410,000 116 2/1/2016 1st
129 $3,301,279 81 3/1/2013 1st
130 $3,293,521 118 4/1/2016 1st
132 $3,179,148 117 3/1/2016 1st
133 $3,114,198 118 4/1/2016 1st
136 $3,000,000 118 4/1/2016 1st
137 $2,987,518 116 2/1/2016 1st
138 $2,981,818 116 2/1/2016 1st
141 $2,675,220 118 4/1/2016 1st
143 $2,645,127 118 4/1/2016 1st
144 $2,597,966 119 5/1/2016 1st
146 $2,530,537 118 4/1/2016 1st
147 $2,495,178 118 4/1/2016 1st
148 $2,493,063 117 3/1/2016 1st
150 $2,389,844 116 2/1/2016 1st
151 $2,198,190 119 5/1/2016 1st
152 $2,032,243 118 4/1/2016 1st
153 $2,026,365 118 4/1/2016 1st
154 $2,000,000 118 4/1/2016 1st
155 $1,996,140 118 4/1/2016 1st
156 $1,991,315 116 2/1/2016 1st
157 $1,700,439 118 4/1/2016 1st
158 $1,555,000 119 5/1/2016 1st
159 $1,372,302 116 2/1/2016 1st
160 $1,092,474 178 4/1/2021 1st
$2,087,466,448
Sequence Monthly Payment Administrative Fee Rate(3) Primary Servicing Fee Rate Master Servicing Fee Rate
-------- --------------- -------------------------- -------------------------- -------------------------
1 $1,239,382 0.021% 0.010% 0.010%
2 $822,426 0.021% 0.010% 0.010%
3 $739,475 0.021% 0.010% 0.010%
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.1
4.11
4.12
4 $854,559 0.021% 0.010% 0.010%
5 $491,609 0.021% 0.010% 0.010%
7 $560,766 0.021% 0.010% 0.010%
8 $508,384 0.021% 0.010% 0.010%
10 $377,287 0.021% 0.010% 0.010%
11 $404,375 0.021% 0.010% 0.010%
12 $248,282 0.021% 0.010% 0.010%
13 $189,886 0.021% 0.010% 0.010%
14 $279,737 0.021% 0.010% 0.010%
15 $253,444 0.021% 0.010% 0.010%
17 $236,513 0.041% 0.030% 0.010%
18 $161,417 0.021% 0.010% 0.010%
20 $183,820 0.021% 0.010% 0.010%
21 $166,117 0.021% 0.010% 0.010%
22.1
22.2
22 $158,498 0.021% 0.010% 0.010%
23 $162,185 0.021% 0.010% 0.010%
29 $132,461 0.021% 0.010% 0.010%
30 $121,068 0.021% 0.010% 0.010%
31 $117,550 0.021% 0.010% 0.010%
32 $115,933 0.021% 0.010% 0.010%
33 $107,128 0.061% 0.050% 0.010%
34 $96,628 0.021% 0.010% 0.010%
35 $95,646 0.021% 0.010% 0.010%
36 $92,378 0.021% 0.010% 0.010%
38 $85,759 0.021% 0.010% 0.010%
40 $88,058 0.021% 0.010% 0.010%
42 $77,397 0.021% 0.010% 0.010%
43.1
43.2
43 $75,939 0.041% 0.030% 0.010%
44 $75,022 0.021% 0.010% 0.010%
45 $69,787 0.021% 0.010% 0.010%
46 $72,762 0.021% 0.010% 0.010%
47 $76,121 0.021% 0.010% 0.010%
49 $68,802 0.021% 0.010% 0.010%
50 $64,097 0.021% 0.010% 0.010%
51 $63,301 0.021% 0.010% 0.010%
52 $51,609 0.021% 0.010% 0.010%
54 $63,037 0.041% 0.030% 0.010%
55 $62,194 0.021% 0.010% 0.010%
57 $45,828 0.021% 0.010% 0.010%
58 $46,385 0.021% 0.010% 0.010%
61 $40,711 0.021% 0.010% 0.010%
62 $18,451 0.021% 0.010% 0.010%
63 $59,794 0.041% 0.030% 0.010%
64 $42,226 0.021% 0.010% 0.010%
65 $52,877 0.041% 0.030% 0.010%
66 $42,378 0.021% 0.010% 0.010%
68 $50,053 0.041% 0.030% 0.010%
69.1
69.2
69.3
69 $44,859 0.021% 0.010% 0.010%
70 $3,286 0.021% 0.010% 0.010%
71 $46,583 0.041% 0.030% 0.010%
73 $37,938 0.071% 0.060% 0.010%
74 $11,695 0.091% 0.080% 0.010%
76 $55,439 0.041% 0.030% 0.010%
77 $44,970 0.071% 0.060% 0.010%
78 $44,154 0.041% 0.030% 0.010%
81 $43,508 0.041% 0.030% 0.010%
82.1
82.2
82.3
82 $40,104 0.071% 0.060% 0.010%
83 $41,461 0.041% 0.030% 0.010%
85 $39,351 0.071% 0.060% 0.010%
86 $38,478 0.081% 0.070% 0.010%
87 $36,949 0.021% 0.010% 0.010%
88 $24,560 0.021% 0.010% 0.010%
89 $13,453 0.021% 0.010% 0.010%
92 $35,327 0.041% 0.030% 0.010%
95 $34,475 0.021% 0.010% 0.010%
97 $25,025 0.021% 0.010% 0.010%
98 $30,899 0.021% 0.010% 0.010%
99 $19,380 0.081% 0.070% 0.010%
100 $11,745 0.091% 0.080% 0.010%
101 $30,360 0.021% 0.010% 0.010%
102 $30,181 0.021% 0.010% 0.010%
103 $35,381 0.021% 0.010% 0.010%
104 $30,315 0.021% 0.010% 0.010%
105 $29,892 0.021% 0.010% 0.010%
108 $29,602 0.041% 0.030% 0.010%
109 $27,632 0.041% 0.030% 0.010%
111 $27,761 0.071% 0.060% 0.010%
113 $25,771 0.021% 0.010% 0.010%
115 $25,866 0.041% 0.030% 0.010%
116 $24,729 0.021% 0.010% 0.010%
117 $25,505 0.091% 0.080% 0.010%
120 $24,673 0.071% 0.060% 0.010%
122 $23,511 0.041% 0.030% 0.010%
123 $21,000 0.071% 0.060% 0.010%
124 $20,849 0.021% 0.010% 0.010%
125 $20,637 0.041% 0.030% 0.010%
127 $20,057 0.041% 0.030% 0.010%
128 $19,922 0.041% 0.030% 0.010%
129 $19,954 0.071% 0.060% 0.010%
130 $19,111 0.021% 0.010% 0.010%
132 $22,215 0.091% 0.080% 0.010%
133 $18,560 0.071% 0.060% 0.010%
136 $17,819 0.091% 0.080% 0.010%
137 $17,627 0.041% 0.030% 0.010%
138 $18,842 0.071% 0.060% 0.010%
141 $16,263 0.071% 0.060% 0.010%
143 $15,849 0.041% 0.030% 0.010%
144 $15,953 0.021% 0.010% 0.010%
146 $15,478 0.091% 0.080% 0.010%
147 $14,607 0.091% 0.080% 0.010%
148 $14,717 0.021% 0.010% 0.010%
150 $13,965 0.041% 0.030% 0.010%
151 $13,230 0.041% 0.030% 0.010%
152 $12,156 0.091% 0.080% 0.010%
153 $12,296 0.071% 0.060% 0.010%
154 $11,963 0.041% 0.030% 0.010%
155 $11,683 0.091% 0.080% 0.010%
156 $11,463 0.091% 0.080% 0.010%
157 $11,100 0.041% 0.030% 0.010%
158 $9,782 0.041% 0.030% 0.010%
159 $9,126 0.091% 0.080% 0.010%
160 $9,173 0.041% 0.030% 0.010%
Sequence Ownership Interest Cross-Collateralized Loans Original Amortization (months) ARD Loan
-------- ------------------ -------------------------- ------------------------------ --------
1 Fee No 360 No
2 Fee/Leasehold No No
3 Fee No 360 No
4.1 Fee
4.2 Fee
4.3 Fee
4.4 Fee
4.5 Fee
4.6 Fee
4.7 Fee
4.8 Fee
4.9 Fee
4.1 Fee
4.11 Fee
4.12 Fee
4 Fee No 300 No
5 Fee No No
7 Leasehold No 360 No
8 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
11 Fee No 300 No
12 Fee No No
13 Fee No Yes
14 Fee No 360 No
15 Fee No 360 No
17 Fee No 360 No
18 Fee No No
20 Fee No 360 No
21 Fee No 360 No
22.1 Fee
22.2 Fee
22 Fee No 360 No
23 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
30 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
32 Leasehold Xx 000 Xx
00 Xxx Xx 000 Xx
34 Fee No 360 No
35 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
38 Leasehold No 360 No
40 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
43.1 Fee
43.2 Fee
43 Fee No 360 No
44 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
46 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
49 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
51 Fee No 360 No
52 Fee No No
54 Fee No 360 No
55 Fee No 360 No
57 Fee No No
58 Fee No No
61 Fee Yes - BACM 06-2 A 360 No
62 Fee Yes - BACM 06-2 A 360 No
63 Fee No 360 No
64 Fee No No
65 Fee No 360 No
66 Fee No No
68 Fee No 360 No
69.1 Fee
69.2 Fee
69.3 Fee
69 Fee Yes - BACM 06-2 B 360 No
70 Fee Yes - BACM 06-2 B 360 No
71 Fee No 360 No
73 Fee Yes - BACM 06-2 C 360 No
74 Fee Yes - BACM 06-2 C 300 No
76 Leasehold Xx 000 Xx
00 Xxx Xx 000 Xx
78 Leasehold Xx 000 Xx
00 Xxx Xx 000 Xx
82.1 Fee
82.2 Fee
82.3 Fee
82 Fee No 360 No
83 Fee Xx 000 Xx
00 Xxx Xx 000 Xx
86 Fee No 360 No
87 Fee No 360 No
88 Fee Yes - BACM 06-2 D 360 No
89 Fee Yes - BACM 06-2 D 360 No
92 Fee No 360 No
95 Fee No 360 No
97 Fee No No
98 Fee No 360 No
99 Fee Yes - BACM 06-2 E 360 No
100 Fee Yes - BACM 06-2 E 360 No
101 Fee No 360 No
102 Fee No 360 No
103 Fee No 240 No
104 Fee No 360 No
105 Fee No 360 No
108 Fee No 360 No
109 Fee No 360 No
111 Fee No 360 No
113 Fee No 360 No
115 Fee No 360 No
116 Fee No 360 No
117 Fee No 360 No
120 Fee No 360 No
122 Fee No 360 No
123 Fee No 360 No
124 Fee No 360 No
125 Fee No 360 No
127 Fee No 360 No
128 Fee No 360 No
129 Fee No 360 No
130 Fee No 360 No
132 Leasehold Xx 000 Xx
000 Xxx Xx 000 Xx
136 Fee No 360 No
137 Fee No 360 No
138 Fee No 300 No
141 Fee No 360 No
143 Fee No 360 No
144 Fee No 360 No
146 Fee No 360 No
147 Fee No 360 No
148 Fee No 360 No
150 Fee No 360 No
151 Fee No 360 No
152 Fee No 360 No
153 Fee No 360 No
154 Fee No 360 No
155 Fee No 360 No
156 Leasehold Xx 000 Xx
000 Xxx Xx 000 Xx
158 Leasehold Xx 000 Xx
000 Xxx Xx 000 Xx
160 Fee No 180 No
Sequence Grace Period(4)
-------- ---------------
1
2 5
3
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.1
4.11
4.12
4
5 5
7 10
8
10 7
11
12
13
14 5
15 5
17 5
18 5
20 5
21 5
22.1
22.2
22 5
23 5
29 5
30 5
31 5
32
33 5
34 5
35 5
36 5
38
40 10
42 5
43.1
43.2
43 5
44 5
45 5
46 5
47 5
49 5
50 5
51 5
52
54 5
55
57
58 5
61 5
62 5
63 5
64
65 5
66 5
68 5
69.1
69.2
69.3
69 5
70 5
71 5
73 5
74 5
76 5
77 5
78 5
81 5
82.1
82.2
82.3
82 5
83 5
85 5
86 5
87 5
88 5
89 5
92 5
95 5
97
98 5
99 5
100 5
101 5
102 5
103 5
104 5
105 5
108 5
109 5
111 5
113 5
115 5
116 5
117 5
120 5
122 5
123 5
124 5
125 5
127 5
128 5
129 5
130 5
132 5
133 5
136 5
137 5
138 5
141 5
143 5
144 5
146 5
147 5
148 5
150 5
151 7
152 5
153 5
154 7
155 5
156 5
157 5
158 5
159 5
160 5
-----------------------
1) Rates are to full precision in the "BACM2006_2.xls" file located on the
computer diskette.
2) For Mortgage Loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day year, the amortization term is
the term over which the Mortgage Loans would amortize if interest accrued
and was paid on the basis of a 360-day year consisting of twelve 30-day
months. The actual amortization would be longer.
3) Administrative Fee Rate includes the rates at which the master servicing
fee (and any sub-servicing fee) and trustee fee accrue.
4) For loan numbers 3219704 & 3219706 the payment grace period is 5 business
days.
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Representations and Warranties with respect to the Mortgage Loans
-----------------------------------------------------------------
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the representations
and warranties attached hereto, the Seller hereby represents and warrants that,
as of the date specified below or, if no such date is specified, as of the
Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interest, participation interests and/or other interests and encumbrances. The
Seller has validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance; provided that recording
and/or filing of various transfer documents are to be completed after the
Closing Date as contemplated hereby and by the Pooling and Servicing Agreement;
provided, if the related assignment of Mortgage and/or assignment of Assignment
of Leases has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage and/or
assignment of Assignment of Leases in favor of the Trustee will be required to
be prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is, or shall be as of the
Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date since
origination, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which materially interferes with the security intended to
be provided by such Mortgage, the current principal use and operation of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; (c)
exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title policy
or "marked-up" commitment), none of which materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use and operation of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (e) the rights of
tenants (as tenants only) under leases (including subleases) pertaining to the
related Mortgaged Property which the Seller did not require to be subordinated
to the lien of such Mortgage and which do not materially interfere with the
security intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee; provided, if the related
assignment of Mortgage has been recorded in the name of MERS or its designee, no
assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee; provided, if the
related assignment of Assignment of Leases has been recorded in the name of MERS
or its designee, no assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall take
all actions as are necessary to cause the Trust to be shown as the owner of the
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) the related Mortgaged
Property has not been released from the lien of such Mortgage; and (c) the
related Borrower has not been released from its obligations under such Mortgage,
in whole or in material part, in each such event in a manner which would
materially interfere with the benefits of the security intended to be provided
by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan after all advances of principal, insuring
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to the exceptions stated therein. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid and, to the Seller's
knowledge, no material claims have been made thereunder and no claims have been
paid thereunder. To the Seller's knowledge, no holder of the related Mortgage
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (except in the case of a Mortgage Loan
maintained on the records of MERS, including endorsement and delivery of the
related Mortgage Note to the Purchaser and recording of the related Assignment
of Mortgage in favor of Purchaser in the applicable real estate records), such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) will inure to the benefit of the Trustee without the consent of or
notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) access to a
public road, and (b) that the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary including,
without limitation, foreclosure or similar proceedings (as applicable for the
jurisdiction where the related Mortgaged Property is located) and, subject to
the exceptions set forth in Paragraph 13 below, enforceable provisions such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage or another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower or any guarantor of
non-recourse exceptions and/or environmental liability with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. To the Seller's knowledge, there is no valid defense, counterclaim or
right of offset, rescission, abatement or diminution available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreements that
would deny the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage greater than or equal to gross
rentals for at least (A) 12 months or (B) for the restoration period plus 180
days. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Federal Emergency Management
Agency ("FEMA") as a special flood hazard area (Zone A or Zone V) (an "SFH
Area"), and flood insurance was available and was required to be maintained by
FEMA, a flood insurance policy meeting the requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without thirty (30) days' prior written notice
to the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. For each Mortgaged Property
located in a Zone 3 or Zone 4 seismic zone, either: (i) a seismic report which
indicated a PML of less than 20% was prepared, based on a 450 or 475-year look
back with a 10% probability of exceedance in a 50-year period, at origination
for such Mortgaged Property or (ii) the improvements for the Mortgaged Property
are insured against earthquake damage. If the Mortgaged Property is located in
Florida or within 25 miles of the coast of Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina or South Carolina such Mortgaged Property is
insured by windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Mortgage Loan and (ii) 100% of the
full insurable value, or 100% of the replacement cost, of the improvements
located on the related Mortgaged Property. With respect to each Mortgage Loan
that has a principal balance as of the origination date that is greater than or
equal to $20,000,000, the related all risk insurance policy and business
interruption policy do not specifically exclude acts of terrorism from coverage.
With respect to each other Mortgage Loan, the related all risk insurance policy
and business interruption policy did not as of the date of origination of the
Mortgage Loan, and, to the Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability. With respect to
each Mortgage Loan, the related Mortgage requires that the related Borrower or a
tenant of such Borrower maintain insurance as described above or permits the
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy will (or,
at the lender's option, will) be applied either to the repair or restoration of
the related Mortgaged Property or to the payment of amounts due under such
Mortgage Loan; provided that the related Mortgage may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). At origination, the Seller received evidence that each
Mortgaged Property was insured by a commercial general liability policy in an
amount not less than $1,000,000 per occurrence.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. At the time of origination of the subject
Mortgage Loan no Borrower under a Mortgage Loan was a debtor in any state or
federal bankruptcy, insolvency or similar proceeding. As of the Closing Date, to
the Seller's knowledge, no Borrower under a Mortgage Loan was a debtor in any
state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
that such Ground Lease is not in full force and effect or that any
material default has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking
possession of the Borrower's leasehold interest, if exercised, would
cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of any
default or as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a curable default
of the lessee under such Ground Lease following notice thereof from
the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)).
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under the related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. To the Seller's knowledge, (a) each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) is free and clear of any and all mechanics' and materialmen's liens
that are prior or equal to the lien of the related Mortgage and that are not
bonded or escrowed for or covered by title insurance, and (b) no rights are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan and based on any of: (a) a letter from governmental authorities,
(b) a legal opinion, (c) an endorsement to the related Title Policy, (d) a
representation of the related borrower at the time of origination of such
Mortgage Loan, (e) a zoning report from a zoning consultant, or (f) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool except
that for an A/B Mortgage Loan the related Companion Loan is secured by the
related Mortgage.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (a) payment
in full of all amounts due under the related Mortgage Loan or (b) delivery of
U.S. Treasury securities in connection with a defeasance of the related Mortgage
Loan; provided that the Mortgage Loans that are Cross-Collateralized Mortgage
Loans, and the other individual Mortgage Loans secured by multiple parcels, may
require the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (a) the satisfaction of certain legal and underwriting requirements, (b)
the payment of a release price and, if required by the related Mortgage Loan
documents, prepayment consideration in connection therewith or (c) the
substitution of real property collateral upon the satisfaction of certain legal
and underwriting requirements; and provided, further, that any Mortgage Loan may
permit the unconditional release of one or more unimproved parcels of land to
which the Seller did not give any material value in underwriting the Mortgage
Loan. The release provisions in any Mortgage Loan if exercised would not cause
such Mortgage Loan to fail to be a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance in an amount to make all
scheduled payments under the Mortgage Note either through and including the
maturity date of the loan or to the first date that the Borrower can prepay the
Loan without a prepayment premium (a) no earlier than two years following the
Closing Date and (b) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. To Seller's knowledge there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan, in any such case to the extent the same
materially and adversely affects the value of the Mortgage Loan and the related
Mortgaged Property; provided, however, that this representation and warranty
does not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of the subject matter otherwise covered
by any other representation and warranty made by the Seller in this Schedule II
or by the exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions (including but not limited to
existing and future mezzanine debt) mentioned in the related Mortgage Loan
Documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy or pollution legal liability policy, then the Seller has delivered or
caused to be delivered to the insurer under such policy copies of all
environmental reports in the Seller's possession related to such Mortgaged
Property to the extent that the failure to deliver any such report would
materially and adversely affect the Purchaser's ability to recover under such
policy.
39. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
41. Servicing Rights. Except as otherwise contemplated in this
Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
46. Servicing and Collection. The servicing of the Mortgage Loans by
the Seller or a sub-servicer retained by the Seller has been legal, proper and
prudent in all material respects.
47. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recoded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed; provided, if the related security agreement and/or UCC
Financing Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor of the
Trustee will be required to be prepared or delivered and instead, the Seller
shall take all actions as are necessary to cause the Trust to be shown as the
owner of the Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination and to the Seller's knowledge as of the Cut-off Date,
each Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of applicable federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
REPRESENTATION 4
Lien; Valid Assignment.
--------------------------------------------------------------------------------
000 Xxxx Xxxxxxx (3400002) As of the closing date of the related
Mortgage Loan, a lien in the amount of
$44,063 was due to an entity known as
Bear Construction, in connection with
work in the 19th floor corridor, however
such amount is neither overdue nor in
dispute.
--------------------------------------------------------------------------------
REPRESENTATION 5
Assignment of Leases and Rents.
--------------------------------------------------------------------------------
To the extent that the related Mortgage Loan borrower leases all or part of the
related Mortgaged Property to a master lessee, which master lessee enters into
leases with tenants of such related Mortgaged Property, such master lessee owns
an interest in any payments due under such related leases.
--------------------------------------------------------------------------------
REPRESENTATION 7
Casualty; Condemnation; Encroachments.
--------------------------------------------------------------------------------
000 Xxxx Xxxxxxx (3400002) A related engineering report revealed
necessary repairs to the related
Mortgaged Property, and an escrow of
funds was required in an amount equal to
100% of the amount estimated to effect
the necessary repairs.
--------------------------------------------------------------------------------
REPRESENTATION 14
Insurance.
--------------------------------------------------------------------------------
Some Mortgage Loan documents provide that the loss of rents or income, as
applicable, will be insured until the earlier of (i) completion of Restoration
or, in some cases, the return of rents/income to the level which existed prior
to the loss, or (ii) the expiration of twelve (12) months.
--------------------------------------------------------------------------------
The Junction (59820) The related Mortgaged Property is located
in the State of California, however
Point 360 Media Center (00000) xxxxxxx insurance may not be maintained.
Northpointe Office Building (59790)
Xxxxxx House (59760)
THQ Headquarters (59740)
Crossroads - Best Buy (59734)
Crossroads - TJ Maxx (59733)
Crossroads - Linens N Things (59732)
Crossroads - PetSmart (59731)
Crossroads - Staples (59730)
Anaheim Desert Palms Hotel & Suites
(59724)
Anaheim Desert Inn & Suites (59723)
North Broadway Retail Center (59693)
North Broadway Plaza (59668)
Atlas Self Storage (59642)
Heritage Marketplace (59614)
Sports Club LA (59603)
Xxxxxxx Road-Sterling (59467)
Laguna Gateway Phase II (58693)
--------------------------------------------------------------------------------
Savannah Marriott (3400077) The related Mortgaged Property is located
in Texas, Louisiana, Mississippi,
Alabama, Georgia, North Carolina or South
Carolina, however windstorm insurance may
not be maintained.
--------------------------------------------------------------------------------
Ford - Princeton Park (59434) The terms of the lease with the sole
tenant of the related Mortgaged Property
will govern with respect to casualty
proceeds, and the related Mortgage Loan
documents do not specify that the
mortgagee or a third party custodian
acceptable to the mortgagee will have the
right to hold and disburse such proceeds.
The related insurance policies are
required to be issued by insurance
companies having a claims paying ability
rating of "BBB" or better by S&P and
"Baa2" by Xxxxx'x (or such other ratings
promulgated from time to time by S&P and
Xxxxx'x for properties and transactions
similar in type and size to the related
Mortgaged Property and the related
Mortgage Loan) and/or a general policy
rating of "A" or better and a financial
class of VIII or better by A.M. Best
Company, Inc.
--------------------------------------------------------------------------------
000 Xxxx Xxxxxxx (3400002) The insurance review summary indicates
that Lender accepts "terrorism insurance
with a reduced limit of $250,000,000".
Pursuant to the Loan Agreement, the
related Borrower is required to maintain
terrorism coverage in an amount equal to
the lesser of (i) 100% of the full
replacement cost of the related Mortgaged
Property and (ii) the amount that can be
obtained at a cost not to exceed $262,000
per year.
Insurance coverage required by the
related Loan Agreement must be issued by
financially sound and responsible
insurance companies having the following
claims paying ability: for the coverages
referenced in Sections 8.1 (a)(i), (iii),
(viii) and (x) of the Loan Agreement, (A)
sixty percent (60%) of the insurance
coverage must be provided by insurance
carriers with a rating of "AA" or better;
(B) thirty percent (30%) of the insurance
coverage (exclusive of that in Section
8.1 (b)(i)(A) must be provided by
insurance carriers with a rating of "BB"
or better; and (C) up to ten percent
(10%) of the insurance coverage may be
provided by insurance carriers that are
not rated by S&P, provided, however, such
carriers shall have an A.M. Best Company,
Inc. (Best) claims paying ability of "A"
or better and a financial size category
of not less than "X".
--------------------------------------------------------------------------------
Two Rockledge Centre (59711) The terrorism insurance premium is capped
at $169,000 per year.
--------------------------------------------------------------------------------
000 Xxxx Xxxxxx (59147) The issuers of the insurance policies
required by the related Loan Agreement
shall give written notice to the lender
if the insurance policies have not been
renewed three (3) days prior to
expiration.
--------------------------------------------------------------------------------
REPRESENTATION 17
Local Law Compliance.
--------------------------------------------------------------------------------
Parkway Xxxxx (59664) The zoning report notes several
missing permits which are required to
be obtained pursuant to the related
post-closing agreement.
--------------------------------------------------------------------------------
REPRESENTATION 18
Leasehold Estate Only.
--------------------------------------------------------------------------------
Faneuil Hall (3400081) The Mortgagor's interest in the
related ground lease may be mortgaged
to the trustee of the securitization
or to an Institutional Lender. An
Institutional Lender means a
commercial bank, trust company, mutual
savings bank, savings and loan
association, life insurance company,
pension trust fund, mortgage or real
estate investment trust having a
minimum paid-in capital of one million
dollars or other financial institution
commonly known as an "Institutional
Lender".
--------------------------------------------------------------------------------
Twin City Town Center (58148) The related ground lease provides as
follows: To the extent required by
the Federal Aviation Administration
(FAA), all subleases are subject to
FAA approval. The related ground
lessor is the Chehalis-Centralia
Airport Governing Board and subject to
regulation by the FAA.
--------------------------------------------------------------------------------
REPRESENTATION 20
Advancement of Funds.
--------------------------------------------------------------------------------
Two Rockledge Centre (59711) The Mortgaged Property is owned by the owner of
the related Borrower and such Borrower executed
the related Mortgage Note and Loan Agreement.
The related Mortgage Loan is secured by an
Indemnity Guaranty and an Indemnity Deed of
Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, which documents
have been executed by the owner of the related
Borrower. This structure is known as an
Indemnity Deed of Trust, which is specific to the
State of Maryland.
--------------------------------------------------------------------------------
Hoods Crossroads Shopping Under the terms of the related Loan Agreement, in
Center (59781) the event the related Mortgage Loan becomes
subject to a cash management event related to the
tenant at the related Mortgaged Property, known
as Food Lion, the Borrower under the
cross-collateralized Long Shoals Storage Mortgage
Loan is required to set up a lockbox account for
the Long Shoals Storage Mortgaged Property and
all monies from such lockbox account will be
distributed to the related Borrower's sole
member, who shall then distribute such monies
into the Food Lion TI/LC reserve established in
the related Loan Agreement.
--------------------------------------------------------------------------------
REPRESENTATION 21
No Equity Interest, Equity Participation or Contingent Interest.
--------------------------------------------------------------------------------
Xxxxxxx Apartment Properties (59649)
Northpointe Office Building (59790)
Xxxxxxx Properties- 222 Northfield The monthly payments on the related
Road (59648) Mortgage Loan are interest-only for 1
year.
Columbia Trails Apartments (58608)
Avalon Apartments (58607)
--------------------------------------------------------------------------------
Heritage Marketplace Murrieta (59614) The monthly payments on the related
Mortgage Loan are interest-only for 2
Summerfield Crossings (59083) years.
--------------------------------------------------------------------------------
Club at Lake Xxxxxxx Apartments
(59778)
Desert Passage (59264)
The monthly payments on the related
Sherwood Apartments &Winding Wood Mortgage Loan are interest-only for 3
Apartments (59666) years.
National Association of Letter
Carriers Building (59803)
--------------------------------------------------------------------------------
000 Xxxx Xxxxxxx (3400002) The monthly payments on the related
Mortgage Loan are interest-only for 4
TGI Friday's Plaza (59482) years.
--------------------------------------------------------------------------------
Xxxxxx House (59760)
Xxxxxxx Road-Sterling (59467)
The monthly payments on the related
North Broadway Plaza (59668) Mortgage Loan are interest-only for 5
years.
Parkway Xxxxx (59664)
Dominion Tower (59816)
--------------------------------------------------------------------------------
Lakewood City Commons (59807) The monthly payments on the related
Mortgage Loan are interest-only for 6
years.
--------------------------------------------------------------------------------
Falcon Gateway Shopping Center (59266) The monthly payments on the related
Mortgage Loan are interest-only for 7
years.
--------------------------------------------------------------------------------
Belk Headquarters (59741)
Two Rockledge Centre (59711)
000 Xxxx 00xx Xxxxxx (59729)
Bank of America at Avenue U (59667)
Xxxxx Xxxxxxxx Plaza (59721)
The monthly payments on the related
Eastland Mall (3219704) Mortgage Loan are interest-only for the
entire term thereof.
Valley Mall (3219706)
000-000 Xxxxxxxx (59749)
000 Xxxx Xxxxxx Xxxxx (59647)
000 Xxxx 00xx Xxxxxx (59748)
Point 360 Media Center (59810)
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REPRESENTATION 26
Licenses and Permits.
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Parkway Xxxxx (59664) The zoning report notes several
missing permits which are required to
be obtained pursuant to the related
Post-Closing Agreement.
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REPRESENTATION 28
Releases of Mortgaged Properties.
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Bon-Ton Department Stores The related Mortgage Loan documents permit
Portfolio (59814) the related mortgagee to substitute an
individual Mortgaged Property for one or
more properties of like kind and quality
upon the satisfaction of certain conditions
set forth in the related Mortgage Loan
documents.
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Faneuil Hall (3400081) The related borrower may obtain the release
of an individual parcel subject to, without
limitation, the following conditions: (a)
the released parcel is not necessary for the
borrower's operation or use of the remaining
portion of the Mortgaged Property; (b) no
event of default exists; (c) after giving
effect to the release, the absence of any
adverse effect on the debt-service-coverage
ratio; and (d) the released parcel is
non-income producing and (A) vacant and
unimproved or (B) improved, upon prior
written consent by the mortgagee. The
substitution of another parcel in
conjunction with such a release is permitted
subject to, without limitation, satisfaction
of the conditions required for a release
with respect to the released parcel and the
substitute parcel.
The related Borrower is permitted to make
certain minor lot line adjustments subject
to such Borrower's compliance with items in
Section 2.15 of the related Loan Agreement.
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Eastland Mall (3219704) The related may, on a one-time basis, obtain
a release of the lien of the mortgage
encumbering the related Mortgaged Property
("Release Property") by substituting
therefore another retail property of like
kind and quality acquired by such Borrower
(the "New Property"). In addition, any such
substitution is subject to, without
limitation, the following conditions
precedent: (a) the related sponsor or an
affiliate controls the related Borrower; (b)
no event of default exists (other than an
event of default which would be cured by the
substitution of the New Property); (c)
receipt by the mortgagee of a FIRREA
appraisal of the New Property dated no more
than 180 days prior to the substitution by a
national appraisal firm, indicating that the
fair market value of the New Property is not
less than one hundred ten percent of the
greater of (i) the appraised value of the
Release Property and (ii) the fair market
value of the Release Property as of the date
immediately preceding the substitution; and
(d) the mortgagee will receive confirmation
from the rating agencies that such
substitution will not result in a downgrade,
withdrawal or qualification of any ratings
issued, or to be issued, in connection with
a securitization involving the related
Mortgage Loan.
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Valley Mall (3219706) The related may, on a one-time basis, obtain
a release of the lien of the mortgage
encumbering the related Mortgaged Property
("Release Property") by substituting
therefore another retail property of like
kind and quality acquired by such Borrower
(the "New Property"). In addition, any such
substitution is subject to, without
limitation, the following conditions
precedent: (a) the related sponsor or an
affiliate controls the related Borrower; (b)
no event of default exists (other than an
event of default which would be cured by the
substitution of the New Property); (c)
receipt by the mortgagee of a FIRREA
appraisal of the New Property dated no more
than 180 days prior to the substitution by a
national appraisal firm, indicating that the
fair market value of the New Property is not
less than one hundred ten percent of the
greater of (i) the appraised value of the
Release Property and (ii) the fair market
value of the Release Property as of the date
immediately preceding the substitution; and
(d) the mortgagee will receive confirmation
from the rating agencies that such
substitution will not result in a downgrade,
withdrawal or qualification of any ratings
issued, or to be issued, in connection with
a securitization involving the related
Mortgage Loan.
The related Borrower is also permitted to
release the "Xxxxxxx Parcel" at any time and
for no consideration, however such parcel
was not assigned value in underwriting the
related Mortgage Loan.
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REPRESENTATION 29
Defeasance.
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With respect to certain of the Mortgage Loans, the substitute collateral
constituting "government securities" is required to be in an amount sufficient
to make all scheduled payments through the end of the prepayment lockout period
rather than through the maturity date of the related Mortgage Loan.
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Valley Mall (3219706) The Mortgage Loan has a Cut-off Date
Balance equal to or greater than
$20,000,000, however the Mortgage Loan
documents do not require confirmation
from the Rating Agency that exercise of
the defeasance option will not cause a
downgrade or withdrawal of the rating
assigned to any securities backed by the
Mortgage Loan.
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REPRESENTATION 35
Single-Purpose Entity.
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The mortgage lender typically does not require that a borrower have an outside
independent director or member in connection with mortgage loans with an
original principal balance of less than $30,000,000.
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Two Rockledge Centre (59711) The related Mortgaged Property is owned by the
owner of the related Borrower and such Borrower
executed the related Mortgage Note and Loan
Agreement. The related Mortgage Loan is
secured by an Indemnity Guaranty and an
Indemnity Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Fixture
Filing, which documents have been executed by
the owner of the related Borrower. This
structure is known as an Indemnity Deed of
Trust, which is specific to the State of
Maryland.
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Laguna Gateway Phase II The related Borrower did not have an outside
(58693) independent director or member as of the closing
date of the related Mortgage Loan. The cut-off
date balance of the related Mortgage Loan is
$33,570,735.42.
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Anaheim Desert Inn & Suites The Borrowers for these Mortgage Loans are
(59723) affiliates, however a non-consolidation opinion
was not required.
Anaheim Desert Palms Hotel &
Suites (59724)
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REPRESENTATION 40
Operating Statements.
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Some Mortgage Loan documents provide that annual financial statements will be
audited by an independent accountant upon the request of the holder of the
Mortgage Loan only following the occurrence of an event of default under such
Mortgage Loan documents or only if financial statements are not delivered in a
timely fashion.
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Xxxxx Courtyard by Marriott The original principal balance of the
Nashville (59570) related Mortgage Loan was greater than
$20 million, however annual financial
Belk Headquarters (59741) statements are not required to be audited
by an independent certified public
Valley Mall (3219706) accountant.
Eastland Mall (3219704)
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Xxxxx Courtyard by Marriott Financial statements are required only
Nashville (59570) from the sponsor tenant in common and any
tenant in common owning more than 20% of
the related Mortgaged Property.
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REPRESENTATION 42
Separate Tax Parcels.
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000 Xxxx Xxxxxxx (3400002) The portion of the related Mortgaged
Property falling in the north half of the
18 foot public alley lying south of
sub-lots 1, 2 and 12 of the related
Mortgaged Property is not taxed and has
no tax number, and therefore is not
covered by the separate tax lot
endorsement attached to the related title
policy.
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Twin City Town Center (58148) The related Mortgaged Property does not
constitute a separate tax lot. However,
as the underlying fee interest is owned
by a government entity, the related
Mortgage Property is exempt from real
estate property taxes. The related Loan
Agreement and Ground Lessor Estoppel
require the fee owner to divide the
property into separate tax lots, such
that the related Mortgaged Property will
then constitute a separate tax lot prior
to any sale of the underlying fee
interest which would result in a loss of
the related Mortgaged Property's
tax-exempt status.
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REPRESENTATION 44
Fee Simple or Leasehold Interest.
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Two Rockledge Centre (59711) The related Mortgaged Property is owned by the
owner of the related Borrower and such Borrower
executed the related Mortgage Note and Loan
Agreement. The related Mortgage Loan is secured by
an Indemnity Guaranty and an Indemnity Deed of
Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, which documents have
been executed by the owner of the related
Borrower. This structure is known as an Indemnity
Deed of Trust, which is specific to the State of
Maryland.
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SCHEDULE IIA
BACM 2006-2 SECURITIZATION
REP EXCEPTIONS FOR THE BRIDGER MORTGAGE LOANS
Exception 6 - Mortgage Status; Waivers and Modifications
The Mortgage Notes with respect to the Solon Place Apartments and Xxxxxxx
Place Apartments Mortgage Loans are being modified and, in each case, the
written instrument evidencing such modification will be delivered to the
Purchaser or its designee as a part of the related Mortgage File.
Exception 12 - Environmental Conditions
With respect to the Regency Plaza Central Avenue Mortgage Loan, a Phase II
environmental site assessment ("ESA") conducted in March 2005 identified the
continued persistence of chlorinated organic constituents above the Ohio VAP
Generic Unrestricted Potable Use Standards at sample locations. The ESA
indicated that additional data must be collected to identify the source of the
chlorinated organic constituents and evaluate relevant possible exposure
pathways to proceed toward the preparation of a "no further action" letter. An
environmental consulting firm was retained to investigate the extent of impact,
perform a risk evaluation and obtain a "no further action" letter. The scope of
work does not provide for active or passive remediation but does include an
evaluation of potential risk pathways (including vapor intrusion), which risk
evaluation may indicate a need for establishing engineering controls or
effecting deed restrictions. The scope of work also includes assisting the
Borrower with the preparation of related documents. The estimated costs for such
services was $65,850 and an environmental reserve of $82,313 (125%) was
established at the closing of the Mortgage Loan, which reserve will be disbursed
upon the satisfaction of certain conditions, including (i) the lender's receipt
of a "no further action" letter and (ii) the absence of any default under the
Mortgage Loan documents.
Exception 14 - Insurance
With respect to the following Mortgage Loans, the related all-risk
insurance policy and business interruption policy exclude acts of terrorism from
coverage: Xxxxxxxx Shopping Center; Clearwater Self Storage; Discount Mini
Storage North; National Storage Center-Vancouver; Xxxxxxx Square Mall; and
Centro Cubano Shopping Center.
With respect to the GE Warehouse Building Mortgage Loan, the related
hazard insurance policy is maintained by the tenant and indicates Bridger
Commercial Funding LLC, the originator of such Mortgage Loan, as an additional
insured thereunder, but such insurance policy (i) does not currently contain a
standard mortgagee clause for the benefit of the "holder of the related
Mortgage, its successors and assigns, as mortgagee," and (ii) accordingly, does
not generally afford the "mortgagee" thirty (30) days' prior written notice of a
termination of such policy or a reduction in the amount of coverage provided
thereunder.
Exception 18 - Leasehold Estate Only
With respect to the Xxxxxxx Square Mall Mortgage Loan:
(i) the Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee but does not specifically provide
that a notice of termination given under the Ground Lease is not effective
against the mortgagee unless a copy has been delivered to the mortgagee in the
manner described in the Ground Lease; and
(ii) the Ground Lease may not be materially amended or modified
without the prior consent of the mortgagee under the Mortgage Loan so long as no
default under the Ground Lease exists that has not been cured within the
applicable period set forth in the Ground Lease, and the Ground Lease provides
that only material amendments or modifications are not binding on the mortgagee,
its successors or assigns, without its consent.
With respect to the Titan Facility Mortgage Loan:
(i) the Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee but does not specifically provide
that a notice of termination given under the Ground Lease is not effective
against the mortgagee unless a copy has been delivered to the mortgagee in the
manner described in the Ground Lease;
(ii) the Ground Lease does not require the lessor to enter into a
new lease with a mortgagee upon termination of the Ground Lease as a result of
any default or as a result of a rejection of the Ground Lease in a bankruptcy
proceeding involving the related Borrower;
(iii) under the terms of the Ground Lease and the Mortgage, taken
together, any related casualty insurance proceeds with respect to the leasehold
interest will be applied to the repair or restoration of all or part of the
Mortgaged Property, but the Ground Lease does not specifically provide that the
mortgagee (or a trustee appointed by the mortgagee) has the right to hold and
disburse such proceeds as the repair or restoration progresses (although the
Mortgage provides that casualty insurance proceeds will be paid to the mortgagee
and applied first to payment of the mortgagee's expenses in settling any such
insurance claims and then to the repair or restoration of the Mortgage
Property); and
(iv) the Ground Lease does not provide that it may not be amended or
modified without the prior consent of the mortgagee under the Mortgage Loan or
that any such action without such consent would not be binding on the mortgagee,
its successors, or assigns.
With respect to The Shops on Sedona Row Mortgage Loan:
(i) the Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee but does not specifically provide
that a notice of termination given under the Ground Lease is not effective
against the mortgagee unless a copy has been delivered to the mortgagee in the
manner described in the Ground Lease;
(ii) the Ground Lease requires the lessor thereunder to "enter into
negotiations for a new lease" with a mortgagee upon termination of the Ground
Lease as a result of any default or as a result of a rejection of the Ground
Lease in a bankruptcy proceeding (but if the Ground Lease is terminated by
operation of law or by reason of being disaffirmed by a receiver, liquidator or
trustee for the Borrower or its property, the Ground Lease will be automatically
reinstated with the mortgagee or its designee for the remainder of the term of
the Ground Lease, effective as of the date of such termination, at the same
rent, and upon the same terms, provisions, covenants and agreements, as
contained in the Ground Lease and subject to the rights, if any, of any parties
then in possession of any part of the Mortgaged Property); and
(iii) the Ground Lease may not be amended or modified without the
prior consent of the mortgagee under the Mortgage Loan, but only such actions
constituting material amendments or modifications are not binding on such
mortgagee without its consent.
Exception 23 - Other Mortgage Liens
The Mortgaged Property securing the Solon Place Apartments Mortgage Loan
is encumbered by a junior mortgage lien ($280,000).
The Mortgaged Property securing The Shops on Sedona Row Mortgage Loan is
encumbered by a junior mortgage lien ($95,000).
The Mortgaged Property securing the Xxxxxxx Place Apartments Mortgage Loan
is encumbered by a junior mortgage lien ($75,000).
In connection with the origination of the Westgate Self Storage Mortgage
Loan, the Seller learned that the Mortgaged Property securing the Mortgage Loans
may be encumbered by a lien in favor the United States for unpaid federal estate
taxes. The Seller discovered no evidence of a related lien filing against the
Mortgage Property but, as a precaution, obtained from the Internal Revenue
Service and recorded a Certificate of Subordination of Federal Tax Lien.
Exception 34 - Due-on-Sale
The tenant-in-common agreements with respect to the Cranberry Business
Center Mortgage Loan provide that if tenants-in-common owning at least 60% of
the interests in the Mortgaged Property (the "Approving TICs") vote to approve a
decision requiring unanimous consent, then each tenant-in-common that voted
against such decision (the "Dissenting TICs") must take one of the following
actions: (i) change its vote to approve such decision and thus become an
Approving TIC; (ii) sell its interest in the Mortgaged Property to any Approving
TIC(s) that have exercised an option to purchase such Dissenting TIC's interest;
or (iii) purchase each Approving TIC's interest in the Mortgaged Property. The
purchase price for the options described in clauses (ii) and (iii) is determined
under the tenant-in-common agreements, which generally require the TICs to
obtain an independent appraisal for such determination.
Exception 41 - Servicing Rights
Servicing rights have been granted as follows:
Loan Servicer
---- --------
Xxxxxx and Central Plaza Capstone Realty Advisors
Broadmoor Trotwood Capstone Realty Advisors
Broadway Festival Plaza Capstone Realty Advisors
Xxxxx Drive Retail Capstone Realty Advisors
FedEx Warehouse Building Capstone Realty Advisors
GE Warehouse Building Capstone Realty Advisors
Heathrow Center Capstone Realty Advisors
Novi Industrial Capstone Realty Advisors
Westgate Self Storage Capstone Realty Advisors
Xxxxxxx Place Collateral Mortgage Capital
Solon Place Apartment Homes Collateral Mortgage Capital
Centro Cubano Shopping Center Collateral Mortgage Capital
Clearwater Self Storage Collateral Mortgage Capital
Discount Mini Storage North Collateral Mortgage Capital
Xxxxxxx Square Mall Collateral Mortgage Capital
Xxxxxxxx Shopping Center Collateral Mortgage Capital
University Xxxxx Apartments Collateral Mortgage Capital
Alico Storage Laureate Capital LLC
Xxxxxxxx Gardens Laureate Capital LLC
North Wake Mini Storage Laureate Capital LLC
Peachtree Street Office Laureate Capital LLC
Suffolk Tower Laureate Capital LLC
Xxxxxx Xxxxx Plaza Laureate Capital LLC
Arden Medical Office Building Midland Loan Services, Inc.
Brookfield-Pelham Roll up Midland Loan Services, Inc.
Carib Villas Midland Loan Services, Inc.
Xxxxxxx Xxxx Apartments Midland Loan Services, Inc.
Cousteau Place Midland Loan Services, Inc.
Cranberry Business Center Midland Loan Services, Inc.
Eastland Communities Midland Loan Services, Inc.
Freehold Business Park Midland Loan Services, Inc.
Gateway Retail Center Midland Loan Services, Inc.
Greenhouse Square Midland Loan Services, Inc.
High Pointe 2 Midland Loan Services, Inc.
Lockaway Storage-Riverside Midland Loan Services, Inc.
Miramar Galleria Midland Loan Services, Inc.
National Storage Center-Vancouver Midland Loan Services, Inc.
Oak Xxxxxxx Apartments Midland Loan Services, Inc.
Parkway Medical Center Midland Loan Services, Inc.
Regency Plaza Central Ave. Midland Loan Services, Inc.
River Oaks Midland Loan Services, Inc.
Secured Storage Vegas Midland Loan Services, Inc.
Sovereign Bank-Newington Midland Loan Services, Inc.
Super Storage Midland Loan Services, Inc.
Xxxxxx Street Midland Loan Services, Inc.
The Shops on Sedona Row Midland Loan Services, Inc.
Titan Facility Midland Loan Services, Inc.
Ventura Plaza Apartments Midland Loan Services, Inc.
Windmill Center Midland Loan Services, Inc.
Exception 44 - Fee Simple or Leasehold Interests
With respect to the Titan Facility Mortgage Loan, the Borrower has an
interest in the Mortgaged Property securing the Mortgage Loan as the assignee of
a beneficial interest in a trust, the trustee of which is the owner of the
leasehold estate in the Mortgaged Property and the improvements thereon.
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The following Mortgage Loans are the Bridger Mortgage Loans:
Alico Storage
Xxxxxx and Central Plaza
Arden Medical Office Building
Broadmoor Trotwood
Broadway Festival Plaza
Brookfield-Pelham Roll up
Carib Villas
Centro Cubano Shopping Center
Xxxxxxx Xxxx Apartments
Clearwater Self Storage
Cousteau Place
Cranberry Business Center
Discount Mini Storage North
Xxxxxxxx Gardens
Eastland Communities
Xxxxx Drive Retail
FedEx Warehouse Building
Freehold Business Park
Gateway Retail Center
GE Warehouse Building
Greenhouse Square
Heathrow Center
High Pointe 2
Xxxxxxx Place
Xxxxxxx Square Mall
Lockaway Storage-Riverside
Miramar Galleria
National Storage Center-Vancouver
North Wake Mini Storage
Xxxxxxxx Shopping Center
Novi Industrial
Oak Xxxxxxx Apartments
Parkway Medical Center
Peachtree Street Office
Regency Plaza Central Avenue
River Oaks
Secured Storage Vegas
Solon Place Apartment Homes
Sovereign Bank-Newington
Suffolk Tower
Super Storage
Xxxxxx Street
The Shops on Sedona Row
Xxxxxx Xxxxx Plaza
Titan Facility
University Xxxxx Apartments
Ventura Plaza Apartments
Westgate Self Storage
Windmill Center
