EXHIBIT 99.2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of October 1, 2006, between Bank of America, National
Association, 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 Barclays Capital Real
Estate Inc. to the Purchaser pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between Barclays Capital Real Estate Inc.
and the Purchaser; (iii) certain mortgage loans transferred by Bear Xxxxxxx
Commercial Mortgage, Inc. to the Purchaser pursuant to a mortgage loan purchase
and sale agreement, dated as of the date hereof between Bear Xxxxxxx Commercial
Mortgage, Inc. and the Purchaser; (iv) certain mortgage loans transferred by
SunTrust Bank to the Purchaser pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between SunTrust Bank and the Purchaser;
and (v) 50% of one mortgage loan transferred by Citigroup Global Markets Realty
Corp. to the Purchaser pursuant to a mortgage loan purchase and sale agreement,
dated as of the date hereof between Citigroup Global Markets Realty Corp. 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 "Offered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of October 1, 2006 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, National Association, as
master servicer (the "Master Servicer"), Midland Loan Services, 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 Offered Certificates to Banc of America
Securities LLC ("BAS"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), Barclays
Capital Inc. ("Barclays Capital"), SunTrust Capital Markets, Inc. ("SunTrust
Xxxxxxxx Xxxxxxxx"), Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and
Greenwich Capital Markets, Inc. ("RBS Greenwich Capital" and, collectively with
BAS, Bear Xxxxxxx, Barclays Capital, SunTrust Xxxxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxx, the "Underwriters") pursuant to an underwriting agreement, dated as of
September 28, 2006 (the "Underwriting Agreement"). BACM intends to sell the
remaining Classes of Certificates (the "Non-Offered Certificates") to BAS, Bear
Xxxxxxx and Barclays Capital, as initial purchasers (collectively, the "Initial
Purchasers"), pursuant to a certificate purchase agreement, dated as of
September 28, 2006 (the "Certificate Purchase Agreement"), among BACM, BAS, Bear
Xxxxxxx and Barclays Capital. The Offered Certificates are more fully described
in the prospectus dated September 28, 2006 (the "Basic Prospectus"), and the
supplement to the Basic Prospectus dated September 28, 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-Offered Certificates are more fully described in a private placement
memorandum, dated September 28, 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 September 28, 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.
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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 after the Cut-off Date
and takes into account credits, sales concessions, any related Interest Deposit
Amount and such other adjustments as agreed to between the parties in a separate
writing which amount shall be payable on or about October 12, 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.
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(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), including
without limitation all principal and interest due on or with respect to the
Mortgage Loans after the Cut-off Date, together with Bank of America's right,
title and interest in and to any related insurance policies and all other
documents in the related Mortgage Files.
(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 requirement. 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.
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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.
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(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 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.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Breach, 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 Mortgage Loan or affected Mortgaged
Property or, in the case of a Cross-Collateralized Mortgage 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 Mortgaged
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 the 90th day following the Closing Date, 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; 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 or 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 Ernst & Young, LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
--------
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller
and of the Purchaser specified in Sections 4 and 5 hereof shall be
true and correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement
(the "Closing Documents"), in such forms as are agreed upon and
reasonably acceptable to the Purchaser and Seller, shall be duly
executed and delivered by all signatories as required pursuant to
the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Purchaser, the Trustee or a Custodian, or the Master Servicer shall
have received to hold in trust pursuant to the Pooling and Servicing
Agreement, as the case may be, all documents and funds required to
be so delivered pursuant to Sections 2(c), 2(d) and 2(e) hereof;
(iv) 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, 30th Floor, NC1-002-29-01 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, National Association, 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, 30th Floor, NC1-002-29-01, 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.
SECTION 23. Puerto Rico Self Storage Portfolio Loan.
----------------------------------------
(a) With respect to Loan No. 3401554 on the Mortgage Loan Schedule
(the "Puerto Rico Self Storage Portfolio Loan"), the Seller hereby agrees to
indemnify the Trust for any and all costs and expenses incurred by the Trust,
including interest on Advances, Special Servicing Fees, Additional Trust Fund
Expenses and the costs and expenses of the Special Servicer in connection with,
or arising out of the enactment after the Closing Date of, any law of the
Commonwealth of Puerto Rico or any political subdivision thereof changing in any
way the laws relating to the taxation of mortgages or security agreements or
debts secured by mortgages or security agreements or the interest of a lender or
secured party in the property covered thereby or interest charged under a loan
or requiring any withholding of taxes by a borrower in respect of a loan, which,
in each case, applies to the Puerto Rico Self Storage Portfolio Loan (any such
enacted legislation, the "Puerto Rico Tax Legislation"); provided that the
foregoing indemnification shall not apply to Special Servicing Fees and other
costs and expenses incurred by the Special Servicer that (i) are incurred as a
result of the failure of the related mortgagor under the Puerto Rico Self
Storage Portfolio Loan to make certain "gross-up" payments pursuant to Section
17.4 of the loan agreement related to the Puerto Rico Self Storage Portfolio
Loan (such payments, the "Puerto Rico Self Storage Portfolio Gross-Up Payments")
and (ii) are incurred prior to the date that the failure of the related
mortgagor to make such Puerto Rico Self Storage Portfolio Gross-Up Payment shall
constitute a Servicing Transfer Event with respect to the Puerto Rico Self
Storage Portfolio Loan in accordance with clause (iii) of the definition of
"Servicing Transfer Event".
(b) As specified in Section 3.30(a) of the Pooling and Servicing
Agreement, the Seller will have the option, exercisable in its sole discretion,
to make Puerto Rico Self Storage Portfolio Gross-Up Payments that are required
to be made by the mortgagor under the terms of the loan agreement for the Puerto
Rico Self Storage Portfolio Loan, to the extent the mortgagor fails to make such
payments. As specified in Section 3.30(b) of the Pooling and Servicing
Agreement, the Seller will have the option, exercisable in its sole discretion,
to purchase the Puerto Rico Self Storage Portfolio Loan upon the enactment of
the Puerto Rico Legislation, so long as an event of default under the Puerto
Rico Self Storage Portfolio Loan has occurred and is continuing.
(c) The Seller further represents that as of the Closing Date and as
of any date thereafter on which the Puerto Rico Self Storage Portfolio Loan is
included as part of the Trust Fund (i) the obligation of the mortgagor under the
Puerto Rico Self Storage Portfolio Loan to make the Puerto Rico Self Storage
Portfolio Gross-Up Payments and (ii) the ability of the mortgagee under such
loan agreement to accelerate the maturity of the Puerto Rico Self Storage
Portfolio Loan as a result of the mortgagor's failure to make any Puerto Rico
Self Storage Portfolio Gross-Up Payments required by such loan agreement (the
preceding clauses (i) and (ii) are hereinafter referred to collectively as the
"Puerto Rico Self Storage Portfolio Representation Remedies"), in each case, are
enforceable in accordance with their terms under such loan agreement, except as
such enforcement may be limited by (a) anti-deficiency laws or bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, and by
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) (the preceding clauses (a) and
(b) are hereinafter referred to collectively as the "Puerto Rico Self Storage
Portfolio Representation Qualifications"); provided that the Puerto Rico Self
Storage Portfolio Representation Qualifications shall not apply to the foregoing
representation regarding the enforceability of the Puerto Rico Self Storage
Portfolio Representation Remedies to the extent that the enforceability of such
remedies is prohibited solely due to (1) the Puerto Rico Tax Legislation
expressly prohibiting the exercise of such remedies or (2) a final,
non-appealable determination by a court of competent jurisdiction that the
Puerto Rico Tax Legislation prohibits the exercise of such remedies.
[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, NATIONAL ASSOCIATION
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
-------- ----------- --------------- ----------------------------------------------
4 0000000 Bank of America Xxxxxxxxx Xxxx
0 0000000 Xxxx xx Xxxxxxx The Shoreham
8 58811 Bank of America Temecula Town Center
10 0000000 Bank of America Essex Green Shopping Center
11 0000000 Bank of America Puerto Rico Self Storage Portfolio (Rollup)
11.1 0000000 Bank of America Puerto Rico Self Storage Portfolio - Santurce
11.2 0000000 Bank of America Puerto Rico Self Storage Portfolio - Catano
11.3 0000000 Bank of America Puerto Rico Self Storage Portfolio - Guaynabo
11.4 0000000 Bank of America Puerto Rico Self Storage Portfolio - Ponce
12 0000000 Bank of America Camp Group Portfolio (Rollup)
12.1 0000000 Bank of America Ramaquois
12.2 0000000 Bank of America Winaukee
12.3 0000000 Bank of America Mah-kee-nac
12.4 0000000 Bank of America Winadu
12.5 0000000 Bank of America Danbee
12.6 0000000 Bank of America Lake of the Xxxxx
12.7 0000000 Bank of America Xxxx Xxxxxxx
12.8 0000000 Bank of America Wicosuta
12.9 0000000 Bank of America Camp Cobbossee
13 59047 Bank of America Fifth Third Center - Naples, FL
14 59070 Bank of America Atlas Walk At Gateway
15 0000000 Bank of America One Pacific Square
17 0000000 Bank of America The Oaks at Park South
18 18084 Bank of America Xxxx Burnie Center
22 0000000 Bank of America Crowne Plaza - Cherry Hill
23 0000000 Xxxx xx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxx
00 00000 Bank of America Xxxxxxx Xxxxx
00 00000 Bank of America Waters Ridge Business Park
40 0000000 Bank of America The Heights at Cape Xxx
41 18147 Bank of America Xxxxxx Estates 1 (Rollup)
41.1 18147 Bank of America Xxxxxx Xxxxxxx 0 - Xxxx 0000
41.2 18147 Bank of America Xxxxxx Xxxxxxx 0 - Xxxx 0000
41.3 18147 Bank of America Xxxxxx Estates 1 - Bldg 8110
47 18157 Bank of America Xxxxxx Estates 2 (Rollup)
47.1 18157 Bank of America Xxxxxx Xxxxxxx 0 - Xxxx 0000
47.2 18157 Bank of America Xxxxxx Xxxxxxx 0 - Xxxx 0000
47.3 18157 Bank of America Xxxxxx Estates 2 - Bldg 8521
50 59596 Bank of America Mission Viejo Town Center
51 0000000 Bank of America Publix at Northridge
52 19506 Bank of America Xxxxxx Business Park
56 17011 Bank of America Georgetown Plaza
61 0000000 Bank of America US Air Conditioning El Cajon
69 17876 Bank of America Woodside Center
71 18964 Bank of America Courtyard Marriott - Portland Airport
81 18108 Bank of America Xxxxxxxxxxx Xxxxx
00 00000 Xxxx of America Hampton Inn Billings
88 16984 Bank of America Sunshine Heights Shopping Center
89 59777 Bank of America Missa Bay (Rollup)
89.1 59777 Bank of America 0000 Xxxxxx Xxxxxx Xxxx
89.2 59777 Bank of America 0 Xxxxxxx Xxxxx
90 0000000 Bank of America 000 Xxxxxx Xxxxxx Xxxxxxx
91 0000000 Bank of America Radisson Hotel SLC Airport
94 19158 Bank of America Plano Technology Center
95 59609 Bank of America Bel Air Tower
97 16795 Bank of America Central Park Villas Apartments
100 18741 Bank of America Hampton Inn Great Falls
101 0000000 Bank of America Xxxxxxx Xxxxx
000 00000 Xxxx xx Xxxxxxx Aquidneck Self Storage
106 19012 Bank of America R&R Plaza
109 0000000 Bank of America 9295 Flamingo
110 19465 Bank of America Xxxxxxxxx Xxxxxxx Xxxxxx
000 00000 Xxxx xx Xxxxxxx Best Western-Atlantic Beach
114 0000000 Bank of America Gardenview North Apartments
115 0000000 Bank of America Creme de la Creme
117 16868 Bank of America Derby Village
120 59408 Bank of America Pear Tree Apartments
121 0000000 Bank of America Hilltop Shopping Center
125 19101 Bank of America Grizzly Self Storage Mesquite
126 0000000 Bank of America Rite Aid - Mechanicsburg
128 59706 Bank of America Xxxx Xxxxxxx Apartments
129 0000000 Bank of America Statewide Elk Grove Mini Storage
Subtotal Crossed Loans
134 59188 Bank of America T-Mobile/Daily Pilot
135 59185 Bank of America Carl's Jr Xxxx Xxxxx
000 00000 Xxxx xx Xxxxxxx Carl's Jr Montclair
137 59186 Bank of America Bob's Big Boy Fresno
138 59187 Bank of America McDonald's Fresno
141 18840 Bank of America Edison Square
143 0000000 Bank of America Xxxxxxxxx Xxxxxx Xxxx
000 00000 Xxxx xx Xxxxxxx Northlite Commons
146 19100 Bank of America Grizzly Self Storage Desoto
147 15179 Bank of America Holiday Inn Express-Portland
149 59646 Bank of America Savannah Heights
151 57827 Bank of America MOB 12 500 Medical Center
153 0000000 Bank of America Lockheed Xxxxxx - 0000 Xxxxx Xxxxxxxxx Xxxxxxx
157 0000000 Bank of America Ritzland Plaza
160 19077 Bank of America Storage Unlimited Burlington
163 19262 Bank of America Auburn Court
170 19239 Bank of America Rock Creek Apartments
171 17490 Bank of America Xxxxx Xxxxxx Xxxxxx
000 00000 Xxxx xx Xxxxxxx Cantonment Self Storage
176 19473 Bank of America River Forest Office
180 19340 Bank of America Xxxxxxxxx Xxxxxx Xxxxxxxx
000 00000 Bank of America Sooner Road Retail
Totals
Sequence Street Address City State Zip Code Mortgage Rate (1)
-------- ---------------------------------------------------------- -------------- ------- -------- -----------------
4 0000 Xxxxxxxxx Xxxx Xxx Xxxx XX 00000 5.916%
6 000 Xxxx Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 5.774%
8 29560-29720 Xxxxxx Xxxxxxxxxx Xxxx & 00000-00000 Xxxx Xxxx Xxxxxxxx XX 00000 5.652%
10 000 Xxxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 5.900%
11 Various Various PR Various 5.999%
11.1 XX Xxxxxx Xxxxxxxxxx XX 0.0 Xxxxxxxx XX 00000
11.2 Xxxxx #0 Xxxxx Xxxx Xxxx Xxxxxx XX 00000
11.3 Xxxxxxx #0, XX 00.0 Xxxxxxxx XX 00000
11.4 000 Xxxxx Xxxx Xxxxx XX 00000
12 Various Various Various Various 6.530%
12.1 00 Xxxxxxxx Xxxx Xxxxxx XX 00000
12.2 000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
12.3 0 Xxxxxxxxx Xxxx Xxxxx XX 00000
12.4 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
12.5 Xxxxx 000 Xxxxxxxx XX 00000
12.6 00000 00-0/0 Xxxxxx Xxxxxxx XX 00000
12.7 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
12.8 00 Xxxxxxxx Xxxxx Xxxxxx XX 00000
12.9 Xxxxx 000 - Xxxx Xxxxxxxxxxxxxxx Xxxxxxxx XX 00000
13 000 Xxxxxxxxxx Xxxxx Xxxx Xxxxxx XX 00000 5.280%
14 0000-0000 Xxxxx Xxxx Xxx Xxxxxxxxxxx XX 00000 5.204%
15 000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 6.153%
17 0000 Xxxxxxxxxx Xxxxxxx Xxxx Xxxx XX 00000 6.168%
18 0000 Xxxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000 6.533%
22 0000 Xxxx Xxxxxxx Xxxx Xxxxxx Xxxx XX 00000 6.349%
23 00 Xxxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 6.263%
24 5469, 5471, and 0000 Xxxxxx Xxxxx Xxxx Xxx Xxxxx XX 00000 6.049%
35 0000 Xxxxxxxxxx Xxxxx, 1955 and 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 6.218%
40 000 Xxxxxxx xx Xxxx Xxx Xxxxx Xxxxxxxxxx XX 00000 5.990%
00 Xxxxxxx Xxxxxxx XX Various 6.193%
41.1 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000
41.2 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000
41.3 0000 Xxxx 00xx Xxxxxx Xxxxxxx XX 00000
47 Xxxxxxx Xxxxxxx XX 00000 6.193%
47.1 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000
47.2 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000
47.3 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxxxx XX 00000
50 28331-28371 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxx XX 00000 5.784%
51 0000-0000 Xxxxx Xxxx Xxxxxxxx XX 00000 5.973%
52 3301,3311,3321 East Xxxxxx Road & 3300,3320 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 6.210%
56 0 Xxxxx XxXxxx Xxxxxxx Xxxxxxxxxx XX 00000 6.270%
61 1250 and 0000 Xxxxx Xxxxxxxx Xxxxxx Xx Xxxxx XX 00000 6.347%
69 1000 Xxxxxxx Exchange West - Buildings 100, 200 and 300 Xxxxxxxxxx XX 00000 6.236%
71 00000 Xxxxxxxxx Xxxxxxx Xxx Xxxxxxxx XX 00000 6.154%
81 00000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxxx Xxxx XX 00000 6.016%
83 0000 Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000 6.507%
88 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 6.473%
89 Various Xxxxxxxxxx XX 00000 6.174%
89.1 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
89.2 0 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000
90 000 Xxxxxx Xxxxxx Xxxxxxx Xxxxx XX 00000 5.975%
91 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxx Xxxx XX 00000 6.308%
94 0000 Xxxxx Xxxx Xxxxx XX 00000 6.505%
95 000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX 00000 5.671%
97 0000 Xxxxxx Xxxxx Xxxx XX Xxxxxxx XX 00000 5.667%
100 0000 00xx Xxxxxx Xxxxxxxxx Xxxxx Xxxxx XX 00000 6.547%
101 000-000 Xxxxx Xxxxxx and 000 Xxxxxx Xxxxxx Xxx Xxxxxx XX 00000 6.156%
104 00 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 6.729%
106 0000 Xxx Xxxxxxx Xxxxxxxxxxx XX 00000 6.274%
109 0000 Xxxx Xxxxxxxx Xxxx Xxx Xxxxx XX 00000 6.536%
110 00 Xxxxx 00 Xxxx Xxxx Xxxxx XX 00000 6.216%
111 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxxx XX 00000 6.471%
114 0000-0000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxxx XX 00000 6.122%
115 000 Xxxxx Xxxxxx Xxx Xxxx Xxxxxxx XX 00000 6.252%
117 6401-6463 Triple Crown Lane & 0000-0000 Xxxxx Xxxxx Xxxxxx XX 00000 6.352%
120 0000 Xxxxxxx Xxxx Xx. Xxx XX 00000 5.312%
121 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000 6.169%
125 0000 Xxxx Xxxx Xxxxxx Xxxxxxxx XX 00000 6.256%
126 0000 Xxxxxxxxxx Xxxx Xxxxxxxxxxxxx XX 00000 6.408%
128 0000-0000 Xxxxxxx Xxxxxx Xx. Xxxxx XX 00000 5.751%
129 0000 Xxxxx Xxxxxxx Xxx Xxxxx XX 00000 6.245%
134 000 Xxxx 00xx Xxxxxx Xxxxx Xxxx XX 00000 4.960%
135 00000 Xxxx Xxxxx Xxxxxxxxx Xxxx Xxxxx XX 00000 4.960%
136 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 4.960%
137 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 4.960%
138 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 4.960%
141 0000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000 6.632%
143 0000-0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 6.490%
144 0000-0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 5.999%
146 0000 Xxxxx Xxxxxxx Xxxx XxXxxx XX 00000 6.256%
147 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 6.626%
149 2600 and 0000-0000 Xxxxxx Xxxxxx Xxxxxx XX 00000 5.646%
151 000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 5.743%
153 0000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 6.326%
157 00000 Xxxxxxxxxx Xxxx Xxxx Xxxxx XX 00000 6.297%
160 00 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 6.326%
163 0000 Xxxx Xxxx Xxxx Xxxxxx Xxxxx XX 00000 6.377%
170 0000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 6.190%
171 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 6.237%
173 0000 Xxxxx Xxxxxxx 00 Xxxxxxxxxx XX 00000 6.474%
176 000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 6.450%
180 000 Xxxx Xxxxx Xxxxx Xxxxx XX 00000 6.562%
181 0000 Xxxxx Xxxxxx Xxxx Xxxxxxx Xxxx XX 00000 6.639%
Sequence Amortization Basis (2) Original Balance Cut-off Date Balance Remaining Term To Stated Maturity (months)
-------- ---------------------- ---------------- -------------------- ------------------------------------------
4 Actual/360 $133,500,000 $133,500,000 59
6 Actual/360 $94,180,000 $94,180,000 120
8 Actual/360 $67,500,000 $67,500,000 102
10 Actual/360 $57,525,000 $57,525,000 119
11 Actual/360 $55,500,000 $55,500,000 119
11.1 $19,759,565 $19,759,565
11.2 $15,093,821 $15,093,821
11.3 $13,627,045 $13,627,045
11.4 $7,019,570 $7,019,570
12 Actual/360 $45,800,000 $45,800,000 119
12.1 $10,102,354 $10,102,354
12.2 $7,986,051 $7,986,051
12.3 $5,270,793 $5,270,793
12.4 $4,951,351 $4,951,351
12.5 $4,791,630 $4,791,630
12.6 $3,993,025 $3,993,025
12.7 $3,194,420 $3,194,420
12.8 $2,874,978 $2,874,978
12.9 $2,635,397 $2,635,397
13 Actual/360 $40,800,000 $40,800,000 106
14 Actual/360 $31,000,000 $31,000,000 107
15 Actual/360 $31,000,000 $31,000,000 119
17 Actual/360 $30,523,000 $30,523,000 119
18 Actual/360 $30,000,000 $30,000,000 118
22 Actual/360 $25,000,000 $24,871,063 116
23 Actual/360 $22,500,000 $22,500,000 119
24 Actual/360 $21,650,000 $21,650,000 51
35 Actual/360 $16,200,000 $16,200,000 118
40 Actual/360 $14,150,000 $14,150,000 119
41 Actual/360 $13,500,000 $13,500,000 115
41.1 $5,274,419 $5,274,419
41.2 $4,458,140 $4,458,140
41.3 $3,767,442 $3,767,442
47 Actual/360 $11,300,000 $11,300,000 116
47.1 $6,126,506 $6,126,506
47.2 $4,084,337 $4,084,337
47.3 $1,089,157 $1,089,157
50 Actual/360 $11,000,000 $11,000,000 118
51 Actual/360 $10,920,000 $10,899,912 118
52 Actual/360 $10,745,000 $10,745,000 117
56 Actual/360 $10,000,000 $10,000,000 119
61 Actual/360 $9,200,000 $9,191,433 119
69 Actual/360 $8,150,000 $8,150,000 116
71 Actual/360 $8,000,000 $7,985,870 118
81 Actual/360 $6,922,500 $6,922,500 115
83 Actual/360 $6,630,000 $6,619,201 118
88 Actual/360 $6,400,000 $6,400,000 117
89 Actual/360 $6,300,000 $6,300,000 87
89.1 $3,850,000 $3,850,000
89.2 $2,450,000 $2,450,000
90 Actual/360 $6,250,000 $6,250,000 119
91 Actual/360 $6,250,000 $6,226,272 117
94 Actual/360 $6,000,000 $6,000,000 118
95 Actual/360 $5,975,000 $5,975,000 111
97 Actual/360 $5,730,000 $5,730,000 113
100 Actual/360 $5,330,000 $5,317,552 117
101 Actual/360 $5,285,835 $5,285,835 118
104 Actual/360 $5,000,000 $5,000,000 117
106 Actual/360 $4,825,000 $4,825,000 118
109 Actual/360 $4,500,000 $4,494,024 83
110 Actual/360 $4,500,000 $4,490,507 119
111 Actual/360 $4,500,000 $4,483,422 117
114 Actual/360 $4,400,000 $4,400,000 119
115 Actual/360 $4,275,000 $4,260,148 116
117 Actual/360 $4,250,000 $4,246,046 119
120 Actual/360 $4,087,000 $4,087,000 111
121 Actual/360 $4,050,000 $4,050,000 119
125 Actual/360 $3,975,000 $3,975,000 118
126 Actual/360 $3,950,958 $3,944,373 118
128 Actual/360 $3,900,000 $3,900,000 113
129 Actual/360 $3,900,000 $3,896,296 119
$3,717,000 $3,598,499
134 Actual/360 $1,265,000 $1,224,671 107
135 Actual/360 $700,000 $677,683 107
136 Actual/360 $636,000 $615,724 107
137 Actual/360 $585,000 $566,350 107
138 Actual/360 $531,000 $514,071 107
141 Actual/360 $3,465,000 $3,459,519 118
143 Actual/360 $3,420,000 $3,420,000 119
144 Actual/360 $3,410,000 $3,410,000 115
146 Actual/360 $3,375,000 $3,375,000 118
147 Actual/360 $3,300,000 $3,292,443 117
149 Actual/360 $3,200,000 $3,200,000 112
151 Actual/360 $3,221,586 $3,112,482 88
153 Actual/360 $3,000,000 $2,995,884 119
157 Actual/360 $2,800,000 $2,797,367 119
160 Actual/360 $2,650,000 $2,650,000 117
163 Actual/360 $2,560,000 $2,555,703 118
170 Actual/360 $2,120,000 $2,120,000 118
171 Actual/360 $2,072,500 $2,068,908 118
173 Actual/360 $2,000,000 $2,000,000 117
176 Actual/360 $1,855,000 $1,853,307 119
180 Actual/360 $1,574,000 $1,574,000 118
181 Actual/360 $1,460,000 $1,456,668 117
$985,489,236
Sequence Stated Maturity Date Due Date Monthly Payment Administrative Fee Rate (3) Primary Servicing Fee Rate
-------- -------------------- -------- --------------- --------------------------- --------------------------
4 9/1/2011 1st $667,281 0.021% 0.010%
6 10/1/2016 1st $459,465 0.021% 0.010%
8 4/1/2015 1st $389,702 0.021% 0.010%
10 9/1/2016 1st $286,759 0.021% 0.010%
11 9/1/2016 1st $332,715 0.021% 0.010%
11.1
11.2
11.3
11.4
12 9/1/2016 1st $308,518 0.021% 0.010%
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
13 8/1/2015 1st $226,058 0.021% 0.010%
14 9/1/2015 1st $170,301 0.021% 0.010%
15 9/1/2016 1st $188,921 0.021% 0.010%
17 9/1/2016 1st $159,067 0.051% 0.040%
18 8/1/2016 1st $190,272 0.041% 0.030%
22 6/1/2016 1st $166,451 0.021% 0.010%
23 9/1/2016 1st $138,727 0.021% 0.010%
24 1/1/2011 1st $110,655 0.021% 0.010%
35 8/1/2016 1st $99,409 0.041% 0.030%
40 9/1/2016 1st $71,613 0.021% 0.010%
41 5/1/2016 1st $82,622 0.041% 0.030%
41.1
41.2
41.3
47 6/1/2016 1st $69,158 0.041% 0.030%
47.1
47.2
47.3
50 8/1/2016 1st $64,431 0.021% 0.010%
51 8/1/2016 1st $65,281 0.021% 0.010%
52 7/1/2016 1st $65,880 0.041% 0.030%
56 9/1/2016 1st $61,702 0.041% 0.030%
61 9/1/2016 1st $57,228 0.021% 0.010%
69 6/1/2016 1st $50,107 0.041% 0.030%
71 8/1/2016 1st $48,759 0.041% 0.030%
81 5/1/2016 1st $41,575 0.041% 0.030%
83 8/1/2016 1st $41,937 0.041% 0.030%
88 7/1/2016 1st $40,339 0.041% 0.030%
89 1/1/2014 1st $32,864 0.021% 0.010%
89.1
89.2
90 9/1/2016 1st $37,372 0.021% 0.010%
91 7/1/2016 1st $41,454 0.021% 0.010%
94 8/1/2016 1st $37,944 0.041% 0.030%
95 1/1/2016 1st $34,569 0.071% 0.060%
97 3/1/2016 1st $33,137 0.041% 0.030%
100 7/1/2016 1st $33,854 0.041% 0.030%
101 8/1/2016 1st $32,223 0.021% 0.010%
104 7/1/2016 1st $32,360 0.091% 0.080%
106 8/1/2016 1st $29,784 0.041% 0.030%
109 9/1/2013 1st $30,486 0.021% 0.010%
110 9/1/2016 1st $32,803 0.041% 0.030%
111 7/1/2016 1st $30,303 0.091% 0.080%
114 9/1/2016 1st $26,726 0.021% 0.010%
115 6/1/2016 1st $26,327 0.021% 0.010%
117 9/1/2016 1st $26,451 0.041% 0.030%
120 1/1/2016 1st $22,726 0.021% 0.010%
121 9/1/2016 1st $24,724 0.021% 0.010%
125 8/1/2016 1st $24,490 0.041% 0.030%
126 8/1/2016 1st $24,734 0.021% 0.010%
128 3/1/2016 1st $22,762 0.021% 0.010%
129 9/1/2016 1st $24,000 0.021% 0.010%
134 9/1/2015 1st $8,321 0.021% 0.010%
135 9/1/2015 1st $4,604 0.021% 0.010%
136 9/1/2015 1st $4,183 0.021% 0.010%
137 9/1/2015 1st $3,848 0.021% 0.010%
138 9/1/2015 1st $3,493 0.021% 0.010%
141 8/1/2016 1st $22,203 0.071% 0.060%
143 9/1/2016 1st $21,594 0.091% 0.080%
144 5/1/2016 1st $20,442 0.041% 0.030%
146 8/1/2016 1st $20,794 0.041% 0.030%
147 7/1/2016 1st $21,132 0.041% 0.030%
149 2/1/2016 1st $18,463 0.051% 0.040%
151 2/1/2014 1st $18,787 0.021% 0.010%
153 9/1/2016 1st $19,931 0.021% 0.010%
157 9/1/2016 1st $17,326 0.021% 0.010%
160 7/1/2016 1st $16,448 0.041% 0.030%
163 8/1/2016 1st $15,974 0.041% 0.030%
170 8/1/2016 1st $12,971 0.091% 0.080%
171 8/1/2016 1st $12,743 0.041% 0.030%
173 7/1/2016 1st $12,607 0.041% 0.030%
176 9/1/2016 1st $11,664 0.041% 0.030%
180 8/1/2016 1st $10,013 0.041% 0.030%
181 7/1/2016 1st $9,362 0.041% 0.030%
Sequence Master Servicing Fee Rate Ownership Interest Cross-Collateralized Loans Original Amortization (months) ARD Loan
-------- ------------------------- ------------------ -------------------------- ------------------------------ --------
4 0.020% Fee No 0 No
6 0.020% Fee No 0 No
8 0.020% Fee No 360 No
10 0.020% Fee Xx 0 Xx
00 0.000% Xxx Xx 000 Xx
11.1 Fee
11.2 Fee
11.3 Fee
11.4 Fee
12 0.020% Fee No 300 No
12.1 Fee
12.2 Fee
12.3 Fee
12.4 Fee
12.5 Fee
12.6 Fee
12.7 Fee
12.8 Fee
12.9 Fee
13 0.020% Fee No 360 No
14 0.020% Fee No 360 No
15 0.020% Fee No 360 No
17 0.050% Fee No 0 No
18 0.040% Fee No 360 No
22 0.020% Fee No 300 No
23 0.020% Fee No 360 No
24 0.020% Fee No 0 No
35 0.040% Fee No 360 No
40 0.020% Fee Xx 0 Xx
00 0.000% Xxx Xx 000 Xx
41.1 Fee
41.2 Fee
41.3 Fee
47 0.040% Fee No 360 No
47.1 Fee
47.2 Fee
47.3 Fee
50 0.020% Fee No 360 No
51 0.020% Fee No 360 No
52 0.040% Fee No 360 No
56 0.040% Fee No 360 No
61 0.020% Fee No 360 No
69 0.040% Fee No 360 No
71 0.040% Fee No 360 No
81 0.040% Fee No 360 No
83 0.040% Fee No 360 No
88 0.040% Fee No 360 No
89 0.020% Fee No 0 No
89.1 Fee
89.2 Fee
90 0.020% Fee No 360 No
91 0.020% Fee No 300 No
94 0.040% Fee No 360 No
95 0.070% Fee No 360 No
97 0.040% Fee Xx 000 Xx
000 0.040% Leasehold Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.090% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.090% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.020% Fee No 360 No
134 0.020% Fee Yes - BACM 06-5 C 240 No
135 0.020% Fee Yes - BACM 06-5 C 240 No
136 0.020% Fee Yes - BACM 06-5 C 240 No
137 0.020% Fee Yes - BACM 06-5 C 240 No
138 0.020% Fee Yes - BACM 06-5 C 240 No
141 0.070% Fee Xx 000 Xx
000 0.090% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.050% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.020% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.090% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee Xx 000 Xx
000 0.040% Fee No 360 No
Sequence Grace Period Loan Group
-------- ------------ ----------
4 10 1
6 0 1
8 5 1
10 5 1
11 5 1
11.1 1
11.2 1
11.3 1
11.4 1
12 0 1
12.1 1
12.2 1
12.3 1
12.4 1
12.5 1
12.6 1
12.7 1
12.8 1
12.9 1
13 5 1
14 5 1
15 5 1
17 5 2
18 5 1
22 0 1
23 5 1
24 0 1
35 5 1
40 8 2
41 5 1
41.1 1
41.2 1
41.3 1
47 5 1
47.1 1
47.2 1
47.3 1
50 5 1
51 5 1
52 5 1
56 5 1
61 5 1
69 5 1
71 5 1
81 5 1
83 5 1
88 5 1
89 5 1
89.1 1
89.2 1
90 5 1
91 5 1
94 5 1
95 5 1
97 5 2
100 5 1
101 5 2
104 5 1
106 5 1
109 5 1
110 5 1
111 5 1
114 5 2
115 5 1
117 5 2
120 5 2
121 5 1
125 5 1
126 5 1
128 5 2
129 5 1
134 5 1
135 5 1
136 5 1
137 5 1
138 5 1
141 5 1
143 5 1
144 5 1
146 5 1
147 5 1
149 5 2
151 10 1
153 5 1
157 5 1
160 7 1
163 5 2
170 5 2
171 5 1
173 5 1
176 5 1
180 5 1
181 5 1
1)Rates are to full precision in the "BACM2006_5.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.
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. 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. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except as enforcement may be limited by bankruptcy and principles of
equity and, in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
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 related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), and (e) 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; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy as described above and
to the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage and is not bonded
over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property (to the extent that a filing of such a UCC
Financing Statement can perfect such a security interest). An
assignment of each UCC Financing Statement relating to the Mortgage
Loan has been delivered by Seller in blank which the Purchaser or
Trustee, as applicable, or designee is authorized to complete and to
file in the filing office in which such UCC Financing Statement was
filed. Each Mortgage Loan and the related Mortgage (along with any
security agreement and UCC Financing Statement), together with
applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the personal property
described above, and the principal benefits of the security intended
to be provided thereby; 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
related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Notwithstanding the foregoing, no representation
is made as to the perfection of any security interest in rents or
any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge 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 and to the Seller's knowledge as of the Cut-off Date: (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 referred to in Paragraph (13) 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 use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance 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, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage
Loan and 100% of the replacement cost of the improvements located on
the related Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss insurance policy providing coverage for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Federal Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least
of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Xxxxx'x or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. 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 30 days' prior written notice to the mortgagee (or,
with respect to non-payment, 10 days' prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law;
and no such notice has been received, including any notice of
non-payment of premiums, that has not been cured. With respect to
each Mortgage Loan, the related Mortgage requires that the related
Borrower or a tenant of such Borrower maintain insurance as
described above or permits the mortgagee to require insurance as
described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September
11, 2001 or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, for
each Mortgage Loan, (A) the related all risk property casualty
insurance policy and business interruption policy do not exclude
acts of terrorism, or any related damage claims or (B) Borrower has
obtained insurance satisfying the above coverage requirements
against damage and business interruption resulting from acts of
terrorism, from coverage as of the later of (i) the date of
origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. 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 (44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more property condition
or engineering reports (relating to lead-based paint, asbestos and
radon gas) or environmental site assessments meeting the
requirements of the American Society for Testing and Materials in
effect at the time the related report was or the related reports
were prepared covering all environmental hazards typically assessed
for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such
an assessment, was performed by an experienced licensed (to the
extent required by applicable state law) environmental consulting
firm with respect to each Mortgaged Property securing a Mortgage
Loan in connection with the origination of such Mortgage Loan and
thereafter updated such that, (a) such Environmental Report is dated
no earlier than twelve months prior to the Closing Date, (b) a copy
of each such Environmental Report has been delivered to the
Purchaser; and (c) either: (i) no such Environmental Report provides
that as of the date of the report there is a material violation of
any applicable environmental laws with respect to any circumstances
or conditions relating to the related Mortgaged Property; or (ii) if
any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the
same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related
to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or
circumstance, (B) the related Mortgagor was required to provide
additional security adequate to cure the subject violation in all
material respects and to obtain an operations and maintenance plan,
(C) such conditions or circumstances were investigated further and
based upon such additional investigation, an independent
environmental consultant recommended no further investigation or
remediation, or recommended only the implementation of an operations
and maintenance program, which the Mortgagor is required to do, (D)
there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (E) the
related Mortgaged Property is insured under a policy of insurance
against losses arising from such circumstances and conditions, (F)
the circumstance or condition has been fully remediated, (G) the
related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, 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, (H) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser
of (a) 2% of the outstanding principal balance of the related
Mortgage Loan and (b) $200,000, (I) the related Mortgagor or another
responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions as have been required by
the applicable governmental regulatory authority, or (J) a
responsible party with financial resources reasonably adequate to
cure the violation provided a guaranty or indemnity to the related
Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are
no significant or material circumstances or conditions with respect
to any Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Mortgagor 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 other Loan Document in the Mortgage File, for each
Mortgage Loan encumbering the Mortgaged Property requires the
related Mortgagor to comply and cause the Mortgaged Property to
comply with all applicable federal, state and local environmental
laws and regulations. The Seller has not taken any action which
would cause the Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental hazards or
which could subject the Seller or its successors and assigns to
liability under such laws. Each Mortgagor represents and warrants in
the related Loan Documents generally to the effect that except as
set forth in certain specified environmental reports and to the best
of its knowledge that as of the date of origination of such Mortgage
Loan, there were no hazardous materials on the related Mortgaged
Property, and that the Mortgagor will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials, in
any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives, or policies governing the use,
storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend
and hold the Seller and its successors and assigns harmless from and
against, or otherwise be liable for, any and all losses resulting
from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage
Loan, generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. 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 Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization (except as disclosed in the Prospectus Supplement) or
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) subject to available funds, 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. Neither the
Seller nor any affiliate thereof has any obligation to make any
capital contribution to the Mortgagor under the Mortgage Loan or
otherwise nor holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage Loan File. No alterations, waivers,
modifications or assumptions of any kind have been given, made or
consented to by or on behalf of the Seller since August 24, 2006.
The Seller has not taken any intentional action that would cause the
representations and warranties of the related Mortgagor under the
Mortgage Loan not to be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage. The terms of the related Mortgage do not
provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration
of payment therefor equal to not less than 125% of the related
allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of
such Mortgage Loan, (c) Mortgage Loans which permit defeasance by
means of substituting for the Mortgaged Property (or, in the case of
a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to
pay the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) when due, and in the case of
ARD Loans, assuming the Anticipated Repayment Date is the Stated
Maturity Date. Further, the Mortgage or other related Loan Document
contained in the Mortgage File requires that an independent
certified public accountant certify that such government securities
are sufficient to make all such scheduled payments when due. To
Seller's actual knowledge, defeasance under the Mortgage Loan is
only for the purpose of facilitating the release of the Mortgaged
Property and not as a part of an arrangement to collateralize a
REMIC with obligations that are not real estate mortgages. With
respect to each Defeasance Loan, the related Mortgage or other
related Loan Document provides that the related Mortgagor shall (or
permits the mortgagee to require the Mortgagor to) (a) pay all
Rating Agency fees associated with defeasance (if Rating Agency
approval is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not
limited to, accountant's fees and opinions of counsel, or (b)
provide all opinions reasonably required by the mortgagee under the
related Loan Documents, including, if applicable, a REMIC opinion
and a perfection opinion and any applicable rating agency letters
confirming no downgrade or qualification of ratings on any classes
in the transaction. Additionally, for any Mortgage Loan having a
Cut-off Date Balance equal to or greater than $20,000,000, the
Mortgage Loan or the related documents require (or permit the
mortgagee to 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 and require (or permit the mortgagee to require) the
Mortgagor to pay any Rating Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof 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, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide,
and/or which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) 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 Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the applicable Seller to the
Purchaser and identified as such with appropriate detail on the
Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
the related Mortgagor 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 and permits have otherwise been
issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and
the servicing practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20 million shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided 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 written instruments which are a part of the
related Mortgage File;
(b) 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
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee 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 written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded 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 under such Mortgage Loan 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 such
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; and such
Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage
Loans secured by Ground Leases, each of the Mortgagors (or its
affiliates) has title in the fee simple interest in each related
Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal; if any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming that it is not otherwise in
default, the rate at which such Mortgage Loan accrues interest will
increase to the sum of the original Mortgage Rate and a specified
margin not less than 2 percent (2%); the Anticipated Repayment Date
of any such Mortgage Loan is not less than 7 years from the date of
origination; and after the Anticipated Repayment Date, the Loan
Documents provide that excess cash flow after payment of expenses,
including scheduled interest and capital expenditures approved by
the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required
under applicable law as of the date of origination, and necessary
for the enforceability or collectability of the Mortgage Loan, the
originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No
Financing for Incomplete Improvements. No Mortgage Loan, other than
an ARD Loan (and then only after the Anticipated Repayment Date for
such ARD Loan), provides for the negative amortization of interest.
Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage
Loan. The Mortgage Loan was not originated for the purpose of
financing the construction of incomplete improvements on the related
Mortgaged Property other than tenant improvements.
(49) No Fraud. Neither the Seller, the originator, nor any
employee or agent of the Seller or the originator has participated
in any fraud or intentional material misrepresentation with respect
to the Mortgagor, the Mortgaged Property or any guarantor. To
Seller's actual knowledge, no Mortgagor or guarantor is guilty of
defrauding or making an intentional material misrepresentation to
the Seller with respect to the origination of the Mortgage Loan, the
Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note
provides a grace period for delinquent Monthly Payments no longer
than 10 days from the applicable Due Date other than as disclosed in
the Mortgage Loan Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge, had no interest, direct
or indirect, in the Mortgaged Property or the Mortgagor or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the
appraisal or a supplemental letter from the appraiser states that
the appraisal satisfies the appraisal guidelines set forth in Title
XI of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 (as amended), all as in effect on the date the Mortgage
Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the
Prospectus Supplement, (a) no Mortgagor is the Mortgagor with
respect to more than one Mortgage Loan and (b) to the Seller's
knowledge, no group of Mortgage Loans with affiliated mortgagors
have an aggregate principal balance equaling more than $152,000,000.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor
environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or
otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession
or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to
the insurer under such policy copies of all
environmental reports in the Seller's possession related
to such Mortgaged Property,
in each case with respect to (i) and (ii) to
the extent required by such policy or to the
extent the failure to make any such disclosure or
deliver any such report would materially and
adversely affect the Purchaser's ability to
recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of
the Mortgage Loan (or 5 years beyond the Anticipated Repayment
Date with respect to an ARD Loan) and is not cancelable during
such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and
the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the
Mortgagor, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have
been paid, such insurance is in full force and effect, such
policy may not be cancelled or amended without the consent of
the Seller or its successors and assigns and, to the Seller's
knowledge, the Mortgagor has made the disclosures and complied
with the requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement
permitting ingress and egress.
SCHEDULE IIA
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EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH
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RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS
---------------------------------------------
REPRESENTATION 3
Good Title; Conveyance.
-----------------------
Rite Aid - Mechanicsburg While no liens yet exist, as of the closing date of
(3401400) the related Mortgage Loan, the related Borrower
represented that the following charges were
outstanding: (i) construction retainage in the
amount of $75,000; (ii) outstanding change orders in
the amount of $40,000; and (iii) outstanding change
orders in the amount of $63,000. A recourse carveout
has been added for losses which may result from the
related Borrower's failure to pay the same.
REPRESENTATION 4
No Holdbacks; Improvements Complete or Escrows Established.
-----------------------------------------------------------
Atlas Walk At Gateway Pursuant to Section 4.23 of the Mortgage Loan
(59070) agreement, related Borrower is permitted to
construct a portion of the related Mortgaged
Property known as Building D following the date of
the related Mortgage Loan closing. The Mortgage Loan
documents are silent as to the funding for such
construction.
Pursuant to Section 4.26 of the Mortgage Loan
agreement, related Borrower is permitted to
construct certain improvements on the Ruby Tuesday
Parcel and the Citgo Parcel following the closing of
the related Mortgage Loan. The Mortgage Loan
documents are silent as to the funding for such
construction.
The zoning report dated as of August 10, 2005 notes
that construction is ongoing at the related
Mortgaged Property and states that the determination
that the related Mortgaged Property complies with
required density restrictions is subject to change
if additional buildings are constructed.
Pursuant to the zoning report, Proffer Statement
PLN2001-00113 provides that related Borrower will
make available 125 parking spaces on the related
Mortgaged Property or on an off-site location for
use as a commuter parking lot. related Borrower
shall be responsible for grading the site and
providing a gravel surface suitable for use as a
commuter parking lot, and such parking will be
available for use upon occupancy of 50,000 square
feet of building floor area located within that
portion of the related Mortgaged Property subject to
the rezoning.
Temecula Town Center An additional advance in an amount equal to
(58811) $6,500,000 was made to the related borrower on
September 13, 2006. A portion of such advance equal
to $5,500,000 has been placed in the 24 Hour Fitness
account, and such amount will be disbursed to the
related borrower upon the satisfaction of certain
conditions including, without limitation: (i) 24
Hour Fitness takes occupancy and is open for
business to the public; (ii) 24 Hour Fitness
commences paying rent under the 24 Hour Lease; (iii)
the related mortgagee has received an estoppel
certificate from 24 hour Fitness; (iv) there is no
event of default under the related Mortgage Loan
documents; (v) the monthly base rental amount to be
paid by tenants at the related Mortgaged Property
will be not less than $478,920 per month as
evidenced by a then-current rent roll certified by
the related Borrower; (vi) the related mortgagee
will have received an appraisal, which confirms that
the loan to value ratio, is not more than 80%; (vii)
all of the related mortgagee's expenses have been
paid by the related Borrower; and (viii) if
requested by the related mortgagee, delivery a
reasonably acceptable subordination, nondisturbance
and attornment agreement. In the event that such
amount is not released to the related borrower on or
prior to September 13, 2007 such funds will be used
to pay down the related Mortgage Loan.
Statewide Elk Grove Mini Pursuant to the related Mortgage Loan documents, a
Storage (3401490) Holdback Letter of Credit in an amount equal to
$631,542 was obtained upon the closing of the
related Mortgage Loan. If the conditions for release
of such Holdback Letter of Credit are not satisfied
on or before the date that is 24 months after the
closing of the related Mortgage Loan, then the
related Borrower will either: (a) draw down on such
Holdback Letter of Credit and pay down the related
Mortgage Loan or deposit such funds into a holdback
reserve account or (b) otherwise deposit an amount
equal to $631,542 into a holdback reserve account.
The Mortgage Loan closed on August 16, 2006.
Atlas Walk At Gateway On the closing date of the related Mortgage Loan,
(59070) the related Borrower established the Debt Service
Coverage Holdback Account in the amount of
$3,500,000 (the "DSC Holdback Funds"). Provided no
Event of Default has occurred and is continuing
under the mortgage loan documents, the related
Borrower will be entitled to a disbursement of the
entire DSC Holdback Funds upon the related
Borrower's written request and mortgagee's
confirmation that the related Mortgaged Property has
achieved a debt service coverage ratio of 1.00x. If
the DSC Holdback Funds have not been released to the
related Borrower prior to May 10, 2006 (the "Trigger
Date"), the related Borrower will, at its option,
either: (i) prepay the related Mortgage Loan in an
amount which would cause the related Mortgaged
Property to attain a debt service coverage ratio of
1.00x or (ii) request that the related mortgagee
disburse the DSC Holdback Funds to the related
Borrower upon delivery of the Debt Service Letter of
Credit as set forth in the related Mortgage Loan
agreement. Any such prepayment made prior to the
securitization of the related Mortgage Loan will be
without the applicable Yield Maintenance Premium.
Xxxxxxx House (3401317) On the closing date of the related Mortgage Loan,
the related Borrower established an account with
mortgagee or mortgagee's agent (the "Rental
Holdback Reserve Account") into which the related
Borrower deposited on the date of the closing of
the related Mortgage Loan $207,005 (the "Rental
Holdback Reserve Amount"). Amounts so deposited
shall hereinafter be referred to as the "Rental
Holdback Reserve Funds". Provided that no Event of
Default has occurred and is continuing under the
mortgage loan documents, upon satisfaction of the
Rental Holdback Reserve Release Conditions (defined
in the Mortgage Loan agreement), the related
mortgagee will disburse the applicable Rental
Holdback Reserve Release Amount (defined in the
Mortgage Loan agreement) from the Rental Holdback
Reserve Funds to the related Borrower. If any of
the Rental Holdback Reserve Release Conditions have
not been satisfied or there will be Rental Reserve
Holdback Funds on deposit with mortgagee within
twelve (12) months of the closing date of the
related Mortgage Loan, the Rental Holdback Reserve
Funds on deposit with mortgagee will be applied to
the related Mortgage Loan as a payment of principal
and the related Borrower will be responsible for
the applicable prepayment premium that is due and
payable in connection with a prepayment of the
related Mortgage Loan as more particularly set
forth in Section 5(c) of the related Note.
The Mortgage Loan closed on July 26, 2006.
REPRESENTATION 6
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 14
Insurance.
----------
Some Mortgage Loan Documents provide that the loss of rents or income, as
applicable, will be insured until completion of Restoration or the expiration of
twelve (12) months, whichever first occurs.
Atlas Walk At Gateway As of the date of the closing of Mortgage Loan,
(59070) none of the insurance policies exclude coverage for
acts of terror. In the event that after the date of
the closing of the Mortgaged Loan any insurance
policy excludes coverage for acts of terror, the
related Borrower will obtain and maintain coverage
for such excluded acts of terror (the "Terrorism
Coverage"). Notwithstanding the foregoing, in no
event will the related Borrower be required to pay
annual premiums in excess of two hundred percent
(200%) of the cost of such premium as of the date of
the closing of the related Mortgaged Property in
order to obtain the Terrorism Coverage (but the
related Borrower will be obligated to purchase such
portion of the Terrorism Coverage as is obtainable
by payment of annual premiums equal to two hundred
percent (200%) of the cost of such premium as of the
date of the closing of the related Mortgaged
Property).
The related Borrower will not be in default of the
insurance provisions set forth in Section 7.1 of the
Mortgage Loan agreement if the related Borrower
maintains (or causes to be maintained) insurance
policies which (i) have coverages, deductibles
and/or other related provisions other than those
required by the Mortgage Loan agreement and/or (ii)
are provided by insurance companies not meeting the
credit ratings required by the Mortgage Loan
agreement (any such Policy, a "Non-Conforming
Policy"), provided, that, prior to obtaining such
Non-Conforming Policies (or permitting such
Non-Conforming Policies to be obtained), the related
Borrower will have (1) received the related
mortgagee's prior written consent thereto and (2) if
required by the related mortgagee, confirmed that
the related mortgagee has received a rating agency
confirmation with respect to any such Non-Conforming
Policy.
The related Borrower is required to maintain
business interruption insurance providing coverage
for the period ending upon the restoration of the
related Mortgaged Property.
Xxxxxxxxx Mall (3402934) Except for flood insurance provided by the federal
government, related Borrower will maintain the
required insurance coverage pursuant to policies
issued by either (A) one or more financially sound
and responsible insurance companies authorized to
do business in the state in which the related
Mortgaged Property is located and having claims
paying ability rating of "A-" or better by S&P or
(B) a syndicate of insurers through which (1) at
least fifty percent (50%) (or sixty percent (60%)
if such syndicate has four or fewer members) of
claims coverage will be with (y) one or more
carriers having a claims-paying-ability rating of
"A-" or better by S&P or "A-IX" or better by A.M.
Best, or (z) Factory Mutual Insurance Company,
provided that such insurer maintains or claims
paying ability of not less than "A-" from Fitch,
and (2) the remaining members of such syndicate
having a rating of "BBB" by S&P or "B+" or better
by A.M. Best.
Except as set forth above, the related Borrower will
maintain the required insurance coverage with a
carriers maintaining a rating by S&P of "BBB" or
better.
If the related Borrower's insurers or reinsurance
carriers fail to provide or maintain the ratings set
forth above, the related Borrower may satisfy the
applicable ratings requirement by providing to the
related mortgagee a "cut-through" endorsement in
form and substance approved by the related mortgagee
issued by an insurer satisfactory to the related
mortgagee or by such other credit enhancement or
guaranty by such other Person, in each event
satisfactory to the related mortgagee and the rating
agencies.
One Pacific Square The related Borrower's obligation to obtain
(3402077) terrorism insurance is subject to a $90,000 cap in
the annual premium for such insurance.
REPRESENTATION 19
Environmental Conditions.
-------------------------
Camp Group Portfolio The Mortgage Loan closed on August 14, 2006 and
(3402523) therefore many of the following items are not yet
due. Meanwhile, please note that: The related
Borrower has the following post-closing conditions:
o With respect to the Camp Xxxx Xxxxxxx and Camp
Ramaquois Mortgaged Property, within thirty (30)
days of the date of the related Mortgage Loan
closing, related Borrower will deliver to mortgagee
an Asbestos O&M Plan reasonably acceptable to
mortgagee.
o With respect to the Camp Ramaquois Mortgaged
Property, within sixty (60) days of the date of the
related Mortgage Loan closing, related Borrower will
(i) deliver to mortgagee a Phase II Environmental
Site Assessment Report ("Phase II") acceptable to
mortgagee in all respects to assess the potential
impact from the removed UST and undertake and
diligently pursue any reasonable action requested by
mortgagee based upon mortgagee's review of the Phase
II and (ii) deliver to mortgagee, from the Rockland
County Department of Health, permit and file
information regarding the septic systems and
undertake and diligently pursue any reasonable
action requested by mortgagee based upon mortgagee's
review of such information.
o With respect to the Camp Lake of the Xxxxx
mortgaged property, within sixty (60) days of the
date of the related Mortgage Loan closing, related
Borrower will deliver to mortgagee a Phase II
acceptable to mortgagee in all respects to assess
the potential impact from the former rifle range and
undertake and diligently pursue any reasonable
action requested by mortgagee based upon mortgagee's
review of Phase II.
o With respect to the Camp Winaukee Mortgaged
Property, related Borrower will (i) continue
bi-annual sampling of the four (4) monitoring xxxxx
at the former rifle range until all of the xxxxx
meet the Ambient Groundwater Quality Standards
("AGQS") for lead, (ii) maintain the three (3)
monitoring xxxxx near solid waste fill area in
accordance with applicable state requirements, and
(iii) continue bi-annual sampling of the three (3)
monitoring xxxxx at the sewage lagoon in accordance
with applicable state requirements.
o With respect to the Camp Winadu Mortgaged
Property, within sixty (60) days of the date of the
related Mortgage Loan closing, related Borrower will
provide additional documentation regarding recent
sampling of monitoring xxxxx near former UST as the
Mortgaged Property is currently listed in the
regulatory databases with a Massachusetts Release
and SHWS as an "unclassified waste site" and related
Borrower will undertake and diligently pursue any
reasonable action requested by mortgagee based upon
mortgagee's review of such additional documentation.
o With respect to the Camp Cobbossee Mortgaged
Property, within sixty (60) days of the date of the
related Mortgage Loan closing, related Borrower will
(i) cause all of the materials in the drums and
containers to be properly characterized for off-site
disposal by a licensed contractor, (ii) cause the
abandoned equipment and debris to be removed from
the Mortgaged Property and disposed of as required
by applicable state law and cause any stained soil
observed after the materials are removed to be
removed and conduct soil samplings of same, (iii)
install a point of entry arsenic filter treatment to
the water systems, (iv) perform limited Phase II
investigation to evaluate lead in soil at the former
rifle range and undertake and diligently pursue any
reasonable action requested by mortgagee based upon
mortgagee's review of the Phase II or provide
evidence acceptable to mortgagee that such
investigation has been completed and that no further
action is required, and (v) provide a Spill
Prevention Control and Countermeasure Plan
reasonably acceptable to mortgagee or provide
evidence reasonably acceptable to mortgagee
demonstrating that no such plan is required.
REPRESENTATION 22
Whole Loan; Interest Only; No Equity Participation or Contingent Interest.
--------------------------------------------------------------------------
Xxxxxxxxx Mall (3402934) The related Mortgage Loan is interest-only.
Seville Plaza (59579)
Missa Bay (59777)
The Oaks at Park South
(3402396)
The Heights at Cape Xxx
(3401841)
The Shoreham (3400178)
Essex Green Shopping
Center (3402713)
Puerto Rico Self Storage The related Mortgage Loan is interest-only for 5
Portfolio (3401554) years.
Westside Center South
(3401390)
Atlas Walk At Gateway
(59070)
One Pacific Square
(3402077)
Pear Tree Apartments
(59408)
Xxxx Xxxxxxx Apartments
(59706)
Fifth Third Center -
Naples, FL (59047)
Temecula Town Center
(58811)
000 Xxxxxx Xxxxxx Xxxxxxx
(3402360)
Northgate Office Park
(3402382)
Hilltop Shopping Center The related Mortgage Loan is interest-only for 4
(3402435) years.
Mission Viejo Town Center The related Mortgage Loan is interest-only for 3
(59596) years.
Camp Group Portfolio The related Mortgage Loan is interest-only for 2
(3402523) years.
Westland Square Shopping
Center (3402446)
Xxxxxxx House (3401317)
Bel Air Tower (59609)
Savannah Heights (59646) The related Mortgage Loan is interest-only for 1
Gardenview North year.
Apartments (3401598)
REPRESENTATION 23
Waivers and Modification.
-------------------------
Temecula Town Center The related Mortgage Loan Documents were amended to
(58811) provide for an additional advance in an amount
equal to $6,500,000 made to the related borrower
on September 13, 2006.
Xxxxxxxxx Mall The related Mortgage Loan Documents
(3402934) were amended to split the loan into a Note A and a
Note B.
Camp Group Portfolio
(3402523)
Seville Plaza (59579)
REPRESENTATION 26
Releases of Mortgaged Property.
-------------------------------
Essex Green Shopping Provided no Event of Default has occurred and is
Center (3402713) continuing, related Borrower may obtain the release
of a portion of the Mortgaged Property known as the
Release Parcel (a "Parcel Release") upon the
satisfaction of certain conditions including,
without limitation, the prepayment of a portion of
the Mortgage Loan in an amount equal to 110% of the
Release Price (hereinafter defined), which is the
allocated portion of the Mortgage Loan attributable
to such Release Parcel, the payment of a prepayment
premium in an amount equal to Yield Maintenance (as
defined in the Note) attributable to the portion of
the Mortgage Loan prepaid, and, if the Mortgage Loan
is part of a Securitization and if required by
mortgagee, receipt by mortgagee of an opinion of
counsel that the Parcel Release would not constitute
a "significant modification" of the Mortgage Loan
under Section 1001 of the Internal Revenue Code or
otherwise cause a tax to be imposed on a "prohibited
transaction" by any REMIC Trust.
"Release Price" means an amount determined by the
mortgagee at the time of the Parcel Release
calculated using the original Mortgage Loan amount,
less the amount supported by the revised cash flow
at the Mortgaged Property (using the revenue from
the tenants on the current rent roll at the time of
the Parcel Release) excluding any income from the
Macy's store, which will also include any lower
level tenants that will be affected, while
maintaining a minimum debt service coverage ratio of
1.20x with operating expenses adjusted for the
reallocation of taxes, common area maintenance costs
and other expenses for the remaining Mortgaged
Property.
Camp Group Portfolio Provided no Event of Default has occurred and is
(3402523) continuing, at any time after October 1, 2008,
related Borrower may obtain the release of an
Individual Property upon the satisfaction of certain
conditions including, without limitation: No more
than five (5) Individual Properties in the aggregate
may be released during the term of the Loan; the
aggregate amount of all previous prepayments
together with the subject prepayment will not exceed
Twenty-Five Million ($25,000,000) of the original
Loan; related Borrower will pay the Prepayment
Premium; and related Borrower will pay 125% of the
allocated loan amount for the applicable Individual
Property.
Xxxxxxxxx Mall (3402934) 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 related
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 related
Borrower's compliance with items in Section 2.15 of
the related Mortgage Loan agreement.
Puerto Rico Self Storage The related borrower may obtain the release of an
Portfolio (3401554) individual parcel of each individual Mortgaged
Property where the Title Insurance Policy and/or the
survey provided to mortgagee at closing show
encroachments into setbacks and/or easement areas
subject to the satisfaction of certain requirements
including, without limitation, the following:
completion of legal subdivision of the Mortgaged
Property from the release parcel; mortgagee's
receipt of written certification from a licensed
surveyor that no such release shall involve (x) any
parking areas necessary to comply with any
applicable zoning or Legal Requirements, unless the
related Borrower shall provide mortgagee with
evidence reasonably satisfactory to mortgagee that
alternative parking has been provided for the
Mortgaged Property sufficient to comply with any
applicable zoning or Legal Requirements or (y) any
portion of the improvements on the Mortgaged
Property; and mortgagee's receipt of a written
confirmation from each of the applicable Rating
Agencies that the credit rating by such rating
agency of such Securities immediately prior to the
occurrence of the Release will not be qualified,
downgraded or withdrawn as a result of the
occurrence of the Release. In addition, the related
Borrower shall be permitted to acquire one or more
parcels adjacent to the Mortgaged Property in
connection with the removal of one or more
encroachments on an individual Mortgaged Property,
subject to the satisfaction of the conditions
including without limitation, a Rating Agency
Confirmation.
REPRESENTATION 27
Defeasance.
-----------
With respect to certain of the related 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.
Xxxxxxxxx Mall (3402934) In connection with the defeasance of the Loan, The
Shoreham (0000000) xxxxxxx Borrower is not required to deliver an
opinion that the release of the lien of the Mortgage
and the pledge of Defeasance Collateral will not
directly or indirectly result in or cause any "real
estate mortgage investment conduit" within the
meaning of Section 860D of the Internal Revenue Code
that holds the related Note (a "REMIC Trust") to
fail to maintain its status as a REMIC Trust.
REPRESENTATION 28
Local Law Compliance; Non-Conforming Uses or Improvements.
----------------------------------------------------------
Atlas Walk At Gateway According to the zoning report, the temporary
(59070) certificates of occupancy for several of the
tenants of the related Mortgaged Property have
expired.
Xxxxxxxxx Mall (3402934) The related Borrower has received only a temporary
certificate of occupancy for that portion of the
related Mortgaged Property that has been recently
redeveloped. Pursuant to the zoning report, the
existing temporary certificate of occupancy for the
related Mortgaged Property expires on October 1,
2006. related Borrower will use diligent efforts to
pursue permanent certificates of occupancy with
respect to the related Mortgaged Property.
The Shoreham (3400178) Attached to the zoning report for the Mortgaged
Property is a building inspection detail listing
open permits and code violations at the Mortgaged
Property as of June 20, 2006.
REPRESENTATION 30
Single-Purpose Entity.
----------------------
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.
Crowne Plaza - Cherry Hill The original principal balance of the related
(3400586) Mortgage Loan is in excess of $20,000,000, however
the Mortgage File does not contain a counsel's
opinion regarding non-consolidation of the related
mortgagor.
REPRESENTATION 32
Litigation or Other Proceedings.
--------------------------------
Xxxxxxxxx Mall (3402934) Pursuant to the search results, related Borrower is
a defendant in the following actions:
o Collections Suit (Mechanics Lien) - damages
sought equal $100,186.65 plus interest and recording
costs;
o Breach of Contract/Warranty - damages sought
equal $67,650 plus interest at a rate of 10% from
July 29, 2005;
o Breach of Contract/Foreclosure of
Mechanic's Lien/Account Stated/Reasonable Value of
Goods and Services - damages sought are equal to or
exceed $2,200,000;
o Collections - damages sought equal $23,997.53;
o Breach of Contract/Warranty - damages sought
equal $159,459 plus 2% interest;
o Foreclosure of Mechanic's Lien - damages sought
equal $16,376.95; and
o Breach of Contract/Warranty - damages sought
equal $540,956.
Camp Group Portfolio Pursuant to the related Borrower's Certification,
(3402523) the related Borrower is a party in the following
lawsuits: XxXxxxxxxx v. Mah Kee Nac Operating Co.,
LLC et al., and Xxxxxxx Real Estate Holding Co.,
LLC v. Town of Piermont.
With respect to the lawsuit known as XxXxxxxxxx v.
Mah Kee Nac Operating Co., LLC et al. the lawsuit is
a personal injury claim related to a waterskiing
accident, $67,949.95 in damages is sought. Xxxxxxx
Real Estate Holding Co., LLC v. Town of Piermont -
Town of Piermont and other plaintiffs are stating
that the property is exceeding the scope of its
non-conforming rights based upon the increased
number of campers and counselors in training (in
1970 there were 254, in 2001 there were 448) and
certain after-camp activities (band and dancing
activities). The plaintiffs are concerned about the
noise generated by the camp as well as the traffic
on the lake and on the road to the camp.
REPRESENTATION 38
Licenses and Permits.
---------------------
Atlas Walk At Gateway According to the zoning report, the temporary
(59070) certificates of occupancy for several of the
tenants of the related Mortgaged Property have
expired.
Xxxxxxxxx Mall (3402934) related Borrower has received only a temporary
certificate of occupancy for that portion of the
related Mortgaged Property that has been recently
redeveloped. Pursuant to the zoning report, the
existing temporary certificate of occupancy for the
related Mortgaged Property expires on October 1,
2006. related Borrower will use diligent efforts to
pursue permanent certificates of occupancy with
respect to the related Mortgaged Property.
REPRESENTATION 41
Non-Recourse Exceptions.
------------------------
Atlas Walk At Gateway The enforceability opinion letter for the related
(59070) Mortgage Loan refers to two Guaranty Agreements,
however only the Guaranty Agreement relating to the
construction of Building D ("Building D Guaranty")
was included in the Loan file. No documentation was
included in the mortgage loan file which indicates
that Xxxxxx X. Xxxxxxxx, the guarantor, has agreed
to indemnify mortgage mortgagee for losses suffered
or incurred by reason of (i) any fraud or material
misrepresentation by the Mortgagor or (ii)
misapplication or misappropriation of rents,
insurance proceeds or condemnation awards.
Casual Male HQ (59659) The related Borrower Principal is an entity.
Xxxxx Xxxxx Xxxxxx -
Xxxxxx, XX (59047)
Creme de la Creme (3401445)
Publix at Northridge
(3401807)
The Shoreham (3400178)
Seville Plaza (59579) There is no Borrower Principal in connection with
MOB 12 500 Medical Center the related Mortgage Loan.
(57827)
Xxxxxxxxx Mall (3402934)
One Pacific Square
(3402077)
Essex Green Shopping
Center (3402713)
Camp Group Portfolio Although three of the four related Borrower
(3402523) Principals are natural persons, the collective
liability and exposure of Xxxxx Xxxxx, Xxx Xxxxxx
and Xxxxxx Xxxxxxxx, as related Borrower Principals,
under Section 12.6 [Environmental Indemnity],
Section 13.5 [Securitization Indemnification] and
Section 15.1 [Exculpation] of the Mortgage Loan
agreement, in the aggregate, will not exceed
$5,000,000 in the aggregate. The foregoing shall in
no way limit or cap CampGroup, LLC's, as a related
Borrower Principal, and related Borrower's
obligations under such provisions of the mortgage
loan documents.
REPRESENTATION 42
Separate Tax Parcels.
---------------------
MOB 500 Medical Center The related loan agreement provides that as soon as
(57827) practicable, the related mortgagor shall use
commercially reasonable efforts to cause the
mortgaged property to be designated as one or more
independent tax lots. If the related mortgagor
delivers evidence to the related mortgage loan
seller that the separation of tax lots would create
a stated increase in taxes, then such mortgagor will
not be required to have the related mortgaged
property separately designated.
The related mortgage loan file includes a certain
tax lot guaranty and a letter of credit that address
the issue and shall remain in effect.
The tax lot guaranties cover both the related
Mortgage Loans and related loans not part of the
loan sale.
REPRESENTATION 43
Financial Statements.
---------------------
Some Mortgage Loan documents provide that annual financial statements will be
audited by an upon the request of the holder of the related 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.
Xxxxxxxxx Mall (3402934) Audited financial statements may not be required by
mortgagee except to the extent required pursuant to
Regulation AB.
Essex Green Shopping Audited financial statements may not be required by
Center (3402713) mortgagee except to the extent they are available
to the related Borrower.
BACM 2006-5 SECURITIZATION
SCHEDULE IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE BRIDGER MORTGAGE LOANS
Schedule IIA (6) Assignment of Leases and Rents
-----------------------------------------------
To the extent that the related Mortgagor leases all or part of the
related Mortgaged Property to a master lessee, which master lessee
enters into leases with tenants of such Mortgaged Property, such master
lessee owns an interest in any payments due under such leases.
With respect to the Xxxx Burnie Center Mortgage Loan (Loan No. 18084),
the related Mortgaged Property is located in Maryland and is owned by a
guarantor of the Mortgage Loan that, accordingly, owns an interest in
payments due under the related leases. Such guarantor executed and
delivered a guaranty in connection with the origination of the Mortgage
Loan, and the Mortgage secured such guarantor's obligations under that
guaranty and constitutes an "indemnity deed of trust."
Schedule IIA (12) Condition of Property; No Condemnation; No Encroachments.
---------------------------------------------------------------------------
Pursuant to the Loan Documents with respect to the Best Western Atlantic
Beach Mortgage Loan (Loan No. 18720), the Mortgagor is personally liable
for any loss or damage sustained to the Mortgaged Property in connection
with a building encroachment over a drainage easement on the Mortgaged
Property recorded in the current public records where the Mortgaged
Property is located.
Schedule IIA (14) Insurance
---------------------------
With respect to each Bridger Mortgage Loan, the related Mortgage
requires the Mortgagor to maintain such insurance as the mortgagee may
require, and thus permits the mortgagee to require the maintenance of
the insurance described in this section.
The Loan Documents with respect to the Edison Square Mortgage Loan (Loan
No. 18840) require the Mortgagor to obtain a policy of windstorm
insurance coverage satisfactory to the mortgagee and such policy must
contain a deductible in the amount satisfactory to the mortgagee. The
Mortgagor has obtained windstorm insurance coverage, but such coverage
does not have a deductible amount satisfactory to the mortgagee. The
Mortgagor has delivered to the mortgagee an irrevocable letter of credit
in the amount of $143,485 to be released upon the Mortgagor obtaining a
policy of windstorm insurance coverage satisfactory to the mortgagee and
that contains a deductible amount satisfactory to the mortgagee.
Schedule IIA (17) Additional Collateral
---------------------------------------
The Loan Documents with respect to the Xxxx Burnie Center Mortgage Loan
(Loan No. 18084) permit the Mortgagor, at any time more than twenty-four
months after the securitization of such Mortgage Loan, to incur
subordinate debt secured by the Mortgaged Property provided that the
mortgagee has approved such subordinate debt in its reasonable
satisfaction and the Mortgagor has satisfied certain financial criteria
and other requirements.
The Loan Documents with respect to the Forum Square Office Mortgage Loan
(Loan No. 18259) permit the Mortgagor, at any time more than twenty-four
months after the securitization of such Mortgage Loan, to incur
subordinate debt secured by the Mortgaged Property provided that the
mortgagee has approved such subordinate debt in its reasonable
discretion and the Mortgagor has satisfied certain financial criteria
and other requirements.
The Loan Documents with respect to the Waters Ridge Business Park
Mortgage Loan (Loan No. 19154) permit the Mortgagor, at any time more
than twelve months after the securitization of such Mortgage Loan, to
incur subordinate debt secured by the Mortgaged Property provided that
the mortgagee has approved such subordinate debt in its reasonable
discretion and the Mortgagor has satisfied certain financial criteria
and other requirements.
The Loan Documents with respect to the Xxxxxx Business Park Mortgage
Loan (Loan No. 19506) permit the Mortgagor, at any time more than twelve
months after the securitization of such Mortgage Loan, to incur
subordinate debt secured by the Mortgaged Property provided that the
mortgagee has approved such subordinate debt in its reasonable
discretion and the Mortgagor has satisfied certain financial criteria
and other requirements.
The Loan Documents with respect to the Courtyard Marriott Portland
Mortgage Loan (Loan No. 18964) permit the Mortgagor, at any time more
than six months after the securitization of such Mortgage Loan, to incur
subordinate debt secured by the Mortgaged Property provided that the
mortgagee has approved such subordinate debt in its reasonable
discretion and the Mortgagor has satisfied certain financial criteria
and other requirements.
The Loan Documents with respect to the Central Park Villa Apartments
Mortgage Loan (Loan No. 16795) permit the Mortgagor, at any time more
than thirty-six months after the securitization of such Mortgage Loan,
to incur subordinate debt secured by the Mortgaged Property provided
that the mortgagee has approved such subordinate debt in its reasonable
satisfaction and the Mortgagor has satisfied certain financial criteria
and other requirements.
Schedule IIA (21) Bankruptcy
----------------------------
To the extent the related Mortgagor leases all or part of the related
Mortgaged Property to tenants, the Seller makes no representation
regarding the bankruptcy or insolvency of any tenant at the Mortgaged
Property.
Schedule IIA (22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest
-----------------------------------------------------------------------
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first year of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
16795 Central Park Villas Apartments
00000 Xxxxxxxxxx Xxxxx
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first two years of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
16984 Sunshine Heights Shopping Center
18991 Aquidneck Self Storage
19012 R&R Plaza
19101 Grizzly Self Storage Mesquite
19100 Grizzly Self Storage Desoto
19239 Rock Creek Apartments
19430 Shoreline Office Building
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first three years of such
Mortgage Loan's term:
Loan No. Mortgage Loan
-------- -------------
18084 Xxxx Burnie Center
00000 Xxxxxx Xxxxx Xxxxxxxx Xxxx
00000 Xxxxxx Business Park
19077 Storage Unlimited Burlington
19130 Cantonment Self Storage
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first four years of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
16205 Northlite Commons
Each of the following Mortgage Loans provides for interest-only payments
without principal amortization for the first five years of such Mortgage
Loan's term:
Loan No. Mortgage Loan
-------- -------------
00000 Xxxxxx Xxxxxxx X
00000 Xxxxxx Xxxxxxx II
00000 Xxxxxxxx Xxxxxx
18108 Northpointe Tower
19158 Plano Technology Center
Schedule IIA (23) Transfers and Subordinate Debt
------------------------------------------------
The Loan Documents with respect to the Xxxxxx Estates Portfolio I (Loan
No. 18147), Xxxxxx Estates Portfolio II (Loan Xx.00000), Xxxxxxxx Center
(Loan No. 17876) and Northpointe Tower Mortgage Loan (Loan No. 18108)
permitted the Mortgagor to transfer tenant-in-common interests in the
Mortgaged Property provided that each purchaser of a tenant-in-common
interest satisfied the mortgagee's single-purpose entity requirements
and certain other conditions were satisfied, and such transfers were all
completed within 90 days after the origination date of the Mortgage
Loan.
The Loan Documents with respect to the Northlite Commons Mortgage Loan
(Loan No. 16205) permitted the Mortgagor to transfer tenant-in-common
interests in the Mortgaged Property provided that each purchaser of a
tenant-in-common interest satisfied the mortgagee's single-purpose
entity requirements and certain other conditions were satisfied, and
such transfers were all completed within 60 days after the origination
date of the Mortgage Loan.
With respect to the Storage Unlimited Burlington Mortgage Loan (Loan No.
19077), the Mortgagor consists of two limited liability companies (the
"TIC Borrowers") that own the applicable Mortgaged Property as
tenants-in-common. The related Loan Documents permit one of the TIC
Borrowers to transfer its interest in the Mortgage Property to the other
TIC Borrower provided that certain conditions set forth in the Loan
Documents are satisfied.
In the case of the Auburn Court Mortgage Loan (Loan No. 19262), there is
existing subordinate debt in the amount of $128,000 that is secured by
the related Mortgaged Property.
Schedule IIA (24) Waivers and Modification
------------------------------------------
With respect to the Xxxx Burnie Center Mortgage Loan (Loan No. 18084):
(i) the Mortgage Loan Documents were amended pursuant to a
letter agreement dated September 11, 2006, which provided an extension
of time for the Mortgagor to transfer a parcel of real property that was
not intended to be included in the Mortgaged Property; and
(ii) a Partial Release of Amended and Restated Indemnity Deed of
Trust and Assignment of Rents and Leases and Security Agreement (and
Fixture Filing) dated September 28, 2006 released two parcels of real
property that were not intended to be included in the Mortgaged
Property.
Schedule IIA (30) Single-Purpose Entity
---------------------------------------
With respect to the Xxxx Burnie Center Mortgage Loan (Loan No. 18084),
the related Mortgaged Property is located in Maryland and is owned by a
guarantor of the Mortgage Loan, which guarantor executed and delivered a
guaranty in connection with the origination of the Mortgage Loan, and
the Mortgage secured such guarantor's obligations under that guaranty
and constitutes an "indemnity deed of trust."
With respect to the Waters Ridge Mortgage Loan (Loan No. 19154), the
Mortgagor is a limited partnership that does not have an independent
director or member.
Schedule IIA (32) Litigation or Other Proceedings
-------------------------------------------------
With respect to the Sooner Road Retail Mortgage Loan (Loan No. 19024),
Xxxxx Xxxx, the guarantor, is subject to pending litigation in the
amount of $21,484 resulting from the construction of his personal
residence. The litigation has been dormant since December 2004 but
remains an open case.
With respect to the Aquidneck Self Storage Mortgage Loan (Loan No.
18991), the Mortgagor and Xxxxx Xxxxxxx, the guarantor, are subject to
pending litigation arising from the bankruptcy of the Newport Creamery
(the previous property owner). The Mortgagor's counsel is involved in
final negotiations with the bankruptcy trustee, arising out of a
fraudulent conveyance claim, which will release the Mortgagor from
further proceedings in exchange for $100,000. A judgment for the sum of
$600,000 was rendered against Xxxxxxx in the bankruptcy court in Rhode
Island arising out of a usury claim filed by the bankruptcy trustee,
which he is appealing. Xxxxxxx has deposited $500,000 with the
bankruptcy trustee. The mortgagee has reserved $200,000 to settle both
the fraudulent conveyance claim against the Mortgagor and the usury
claim against Xxxxxxx.
Schedule IIA (37) Escrow Deposits
---------------------------------
It is anticipated that the primary servicers of the Bridger Mortgage
Loans will retain possession of the escrows, deposits and payments on
behalf of the Depositor, rather than conveying possession thereof to the
Depositor on the Closing Date.
Schedule IIA (41) Non-Recourse Exceptions
-----------------------------------------
Each of the following Mortgage Loans has a non-recourse carve-out for
"fraud or intentional misrepresentation" rather than "fraud or material
misrepresentation":
Loan No. Mortgage Loan
-------- -------------
18084 Xxxx Burnie Center
00000 Xxxxxx Xxxxx Xxxxxxxx Xxxx
00000 Xxxxxx Xxxxxxx I
00000 Xxxxxx Xxxxxxx II
19506 Xxxxxx Business Park
00000 Xxxxxxxx Xxxxxx
00000 Xxxxxxxxx Xxxxxxx - Xxxxxxxx Xxxxxxx
00000 Northpointe Tower
18738 Xxxxxxx Xxx Xxxxxxxx
00000 Xxxxxxxx Xxxxxxx Shopping Center
16795 Central Park Villas Apartments
19101 Grizzly Self Storage Mesquite
16205 Northlite Commons
19100 Grizzly Self Storage Desoto
15179 Xxxxxxx Xxx Xxxxxxx - Xxxxxxxx
00000 Storage Unlimited Burlington
00000 Xxxxxx Xxxxx
17490 Forum Square Office
19158 Plano Tech Center
19473 River Forest Office
With respect to the Shoreline Office Mortgage Loan (Loan No. 19340), a
limited liability company rather than a natural person is the guarantor.
Schedule IIA (43) Financial Statements
--------------------------------------
With respect to the following Bridger Mortgage Loans, the related Loan
Documents require the delivery of at least quarterly operating
statements as well as an annual balance sheet of the related Mortgagor
(but such Loan Documents do not specifically require (i) the delivery of
an annual operating statement or (ii) that the annual balance sheet
include a statement of changes in financial position):
Loan No. Mortgage Loan
-------- -------------
18084 Xxxx Burnie Center
00000 Xxxxxx Xxxxx Xxxxxxxx Xxxx
00000 Xxxxxx Xxxxxxx I
00000 Xxxxxx Xxxxxxx II
19506 Xxxxxx Business Park
00000 Xxxxxxxx Xxxxxx
18108 Xxxxxxxxxxx Xxxxx
00000 Xxxxxxxx Xxxxxxx Shopping Center
16205 Northlite Commons
17490 Forum Square Office
19158 Plano Technology Center
Schedule IIA (44) Fee/Leasehold Properties
With respect to the Hampton Inn Great Falls Mortgage Loan (Loan No.
18741):
(i) the Ground Lease does not require the lessor to enter into a
new lease with the mortgagee upon termination of such Ground Lease, but
rather provides that mortgagee will succeed to the lessee's interest
under the Ground Lease for the remainder of the term (and during any
option periods); and
(ii) the Ground Lease may not be amended or modified without the
prior consent of the mortgagee under such Mortgage Loan, but there is no
language providing that "any such action without such consent is not
binding on such mortgagee, its successors or assigns."
Schedule IIA (45) Fee Simple Interest
-------------------------------------
The Xxxx Burnie Mortgage Loan (Loan No. 18084) is structured as an
"indemnity deed of trust" and the related Mortgaged Property is owned by
a guarantor of the Mortgage Loan, an affiliate of the borrower, rather
than by the borrower itself.
Bridger Mortgage Loans
----------------------
The following Mortgage Loans are the Bridger Mortgage Loans:
Loan No. Mortgage Loan
-------- -------------
18084 Xxxx Burnie Center
00000 Xxxxxx Xxxxx Xxxxxxxx Xxxx
00000 Xxxxxx Xxxxxxx 1
00000 Xxxxxx Xxxxxxx 2
19506 Xxxxxx Business Park
00000 Xxxxxxxxxx Xxxxx
00000 Xxxxxxxx Center
00000 Xxxxxxxxx Xxxxxxxx - Xxxxxxxx Xxxxxxx
00000 Northpointe Tower
18738 Hampton Inn Billings
16984 Sunshine Heights Shopping Center
19158 Plano Technology Center
16795 Central Park Villas Apartments
18741 Xxxxxxx Xxx Xxxxx Xxxxx
00000 Aquidneck Self Storage
00000 X&X Xxxxx
00000 Xxxxxxxxx Medical Office
18720 Best Western-Atlantic Beach
16868 Xxxxx Xxxxxxx
00000 Grizzly Self Storage Mesquite
00000 Xxxxxx Xxxxxx
16205 Northlite Commons
19100 Grizzly Self Storage Desoto
15179 Holiday Inn Express-Portland
19077 Storage Unlimited Burlington
00000 Xxxxxx Xxxxx
00000 Xxxx Xxxxx Apartments
00000 Xxxxx Xxxxxx Xxxxxx
00000 Cantonment Self Storage
19473 Rehab Center of Chicago (River Forest Office)
19340 Shoreline Office Building
19024 Sooner Road Retail
