EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of August 1, 2006, between General Electric Capital
Corporation, as seller (the "Seller" or "GECC"), 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 separately transfer the
master servicing rights with respect to such Mortgage Loans pursuant to the
Agreement to Appointment of Servicer, dated as of August 1, 2006 among GECC,
BACM and the Master Servicer (as defined below).
The Purchaser intends to transfer or cause the transfer of (i) the
Mortgage Loans, (ii) certain mortgage loans transferred by Bank of America,
National Association to the Purchaser pursuant to a mortgage loan purchase and
sale agreement, dated as of the date hereof between Bank of America, National
Association and the Purchaser and (iii) certain mortgage loans transferred by
German American Capital Corporation to the Purchaser pursuant to a mortgage loan
purchase and sale agreement, dated as of the date hereof between German American
Capital Corporation and the Purchaser, to a trust (the "Trust") created pursuant
to the Pooling and Servicing Agreement (as defined below). Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of commercial mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and/or
Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of August 1, 2006 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, as master servicer (the
"Master Servicer"), LNR Partners, Inc., as special servicer (the "Special
Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (in such capacity, the
"Trustee") and as REMIC administrator. Capitalized terms used but not otherwise
defined herein have the respective meanings assigned to them in the Pooling and
Servicing Agreement.
BACM intends to sell the Registered Certificates to Banc of America
Securities LLC ("BAS"), Deutsche Bank Securities Inc. ("Deutsche Bank"), Credit
Suisse Securities (USA) LLC ("Credit Suisse"), and X.X. Xxxxxx Securities Inc.
("JPMorgan" and, collectively with BAS, Deutsche Bank and Credit Suisse, the
"Underwriters") pursuant to an underwriting agreement, dated as of August 18,
2006 (the "Underwriting Agreement"). BACM intends to sell the remaining Classes
of Certificates (the "Non-Registered Certificates") to BAS and Deutsche Bank, as
initial purchasers (collectively, the "Initial Purchasers"), pursuant to a
certificate purchase agreement, dated as of August 18, 2006 (the "Certificate
Purchase Agreement"), among BACM, BAS, Deutsche Bank, Credit Suisse and
JPMorgan. The Registered Certificates are more fully described in the prospectus
dated August 18, 2006 (the "Basic Prospectus"), and the supplement to the Basic
Prospectus dated August 18, 2006 (the "Prospectus Supplement"; and, together
with the Basic Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The privately offered Non-Registered
Certificates are more fully described in a private placement memorandum, dated
August 18, 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 August 18, 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 and Sell.
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, $528.93 with respect to the Highland Square Apartments Mortgage Loan and
such other adjustments as agreed to between the parties in a separate writing)
which amount shall be payable on or about August 29, 2006 in immediately
available funds. The Purchaser shall be entitled to all interest accrued on the
Mortgage Loans after the Cut-off Date and all principal payments received on the
Mortgage Loans after the Cut-off Date except for principal and interest payments
due and payable on the Mortgage Loans on or before the Cut-off Date, which shall
belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loans after the Cut-off Date, together with GECC'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 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.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error in
the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a corporation, duly authorized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance of Seller's obligations under this Agreement, will not
violate the Seller's organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or
other instrument to which it is a party or which is applicable to it or
any of its assets, which default or breach, in the Seller's good faith and
commercially reasonable judgment is likely to affect materially and
adversely either the ability of the Seller to perform its obligations
under this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter into and
perform its obligations under this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium and other laws affecting
the enforcement of creditors' rights generally and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Seller to perform its obligations under this Agreement or the
financial condition of the Seller.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which if determined adversely to the Seller
would prohibit the Seller from entering into this Agreement, or in the
Seller's good faith and reasonable judgment, would be likely to materially
and adversely affect either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated herein, except for those consents, approvals, authorizations
or 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 Serviced Loan (each, a "Defective Mortgage Loan") at the related
Purchase Price in accordance with the terms hereof and, if applicable, the terms
of the Pooling and Servicing Agreement, with payment to be made in accordance
with the reasonable directions of the Purchaser; provided that if the Seller
certifies in writing to the Purchaser (i) that, as evidenced by an accompanying
Opinion of Counsel, any such Material Breach or Material Document Defect, as the
case may be, does not and will not cause the Defective Mortgage Loan, to fail to
be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code,
(ii) that such Material Breach or Material Document Defect, as the case may be,
is capable of being corrected or cured but not within the applicable Initial
Resolution Period, (iii) that the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Document Defect, as
the case may be, within the applicable Initial Resolution Period, and (iv) that
the Seller anticipates that such Material Breach or Material Document Defect, as
the case may be, will be corrected or cured within an additional period not to
exceed the Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such correction or cure or, failing such, to repurchase the Defective
Mortgage Loan; and provided, further, that, if the Seller's obligation to
repurchase any Defective Mortgage Loan as a result of a Material Breach or
Material Document Defect arises within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan, servicing released basis. The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following receipt by the Seller of written
notice from the Master Servicer or the Special Servicer of the occurrence
of any Servicing Transfer Event with respect to such Mortgage Loan
subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as of
the commencement of the applicable Initial Resolution Period, but as to
which a Servicing Transfer Event occurs during such Initial Resolution
Period, the period commencing at the end of the applicable Initial
Resolution Period and ending on, and including, the 90th day following
receipt by the Seller of written notice from the Master Servicer or the
Special Servicer of the occurrence of such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero (-0-) days;
provided, however, that if the Seller did not receive written notice from
the Master Servicer or the Special Servicer of the relevant Servicing
Transfer Event as of the commencement of the applicable Initial Resolution
Period, then such Servicing Transfer Event shall be deemed to have
occurred during such Initial Resolution Period and the immediately
preceding clause (iii) of this definition will be deemed to apply.
Notwithstanding the foregoing, the applicable Seller shall have an
additional 90 days to cure such Material Document Defect or Material Beach,
provided that the Seller has commenced and is diligently proceeding with the
cure of such Material Document Defect or Material Breach and such failure to
cure is solely the result of a delay in the return of documents from the local
filing or recording authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan
or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized Mortgage Loan in the manner described above unless,
in the case of a Material Breach or Material Document Defect, both of the
following conditions would be satisfied if the Seller were to repurchase or
substitute for only the affected Cross-Collateralized Mortgage Loans or affected
Mortgaged Properties as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph: (i) the debt service coverage
ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the four calendar quarters immediately preceding the repurchase
or substitution is not less than the greater of (a) the debt service coverage
ratio immediately prior to the repurchase, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which
the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized 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 Mortgage
Property as to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver
the related Mortgage File for each such substitute mortgage loan to the
Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced as
contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in the
Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and deliver
to the Purchaser or its designee, all documents missing from such Mortgage
File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its designee
all documents required to be delivered by the Seller as part of such
Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its designee
of any notice of any remaining deficiencies to such Mortgage File as of
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 Deloitte Touche Tohmatsu
(the "Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall
be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m., Charlotte
time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and of
the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(iii) The Seller shall have delivered and released to the Purchaser,
the Trustee or a Custodian, or the Master Servicer shall have received to
hold in trust pursuant to the Pooling and Servicing Agreement, as the case
may be, all documents and funds required to be so delivered pursuant to
Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with,
and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or agreed
to pay all fees, costs and expenses payable to the Purchaser or otherwise
pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following, and the
delivery thereof on or prior to the Closing Date can only be waived and modified
by mutual consent of the parties hereto:
(a) 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;
(b) 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;
(c) Certificate of good standing regarding the Seller from the
Secretary of the State of Delaware dated not earlier than 30 days prior to the
Closing Date;
(d) 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;
(e) 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;
(f) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates;
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request;
(h) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(i) 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 General Electric Capital Corporation, 000 Xxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxx Xxxxx, telecopy number:
000-000-0000 (with copies to Xxxxxxxx X. XxXxxx, Esq., General Electric Capital
Corporation, 000 Xxxx Xxxxx Xx., Xxxxxxxx, Xxxxxxxxxxx, 00000, fax number (203)
000-0000) or to such other addresses as may hereafter be furnished to the
Purchaser by the Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT 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.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Signatory
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 Street Address
-------- ----------- ----------- ---------------------------------- ----------------------------------------------
8 760054742 GECC Extra Space Portfolio (Rollup) Various
8.1 760054742 GECC Extra Space - Xxxxxxx Oaks 0000 Xxxxxxxxx Xxxxxxxxx
8.2 760054742 GECC Extra Space - Bronx 000 Xxxx Xxxxxxx Xxxx
8.3 760054742 GECC Extra Space - Hoboken 0000 Xxxxxxx Xxxxxx
8.4 760054742 GECC Extra Space - Venice 0000 X.X. Xxxxxxx 41 Bypass
8.5 760054742 GECC Extra Space - Lakewood Pacific Way 00000 Xxxxxxx Xxxxxxx Xxxxxxxxx
8.6 760054742 GECC Extra Space - Xxxxxxxx 00xx Xxxxxx 0000 Xxxxx 00xx Xxxxxx
8.7 760054742 GECC Extra Space - Dacula 0000 Xxxxxxxxx Xxxxxxx
8.8 760054742 GECC Extra Space - Nanuet 000 Xxxx Xxxxx 59
8.9 760054742 GECC Extra Space - Manteca 000 Xxxxx Xxxx Xxxxxx
9 760054397 GECC 00 Xxxx Xxxxx 00 Xxxx Xxxxx
16 760054019 GECC 000 Xxxxx Xxxxxxxx Xxxxxx 350 South Xxxxxxxx Street
23 760054161 GECC Flushing Landmark 00-00 Xxxx Xxxxxx
37 760055679 GECC Cornerstone Center 000-000 Xxxxx Xxxxx Xxxx
38 760050618 GECC Bridle Creek Apts. 0000 Xxxxxxxxxxxxx Xxxx
40 760054180 GECC WXH - Hilton Evanston 0000 Xxxxx Xxxxxx
41 760053361 XXXX Xxxxx Xxxxx 0000 Xxxxx Xxxxxxxxx
45 760054678 GECC Pacific Sorrento Technology Park 10110 - 00000 Xxxxxxxx Xxxxxx Xxxx
48 760051677 GECC 0000 Xxxxxxxx Xxxxxx XX 0000 Xxxxxxxx Xxxxxx XX
49 760052787 GECC WXH - Hampton Inn Xxxxxxxx 000 Xxxxxxxxx Xxxx
55 760052784 GECC WXH - Homewood Suites Raleigh 5400 Homewood Banks Drive
58 760054257 GECC Xxxxxxx Xxxxxx Xxxx 0000-0000 Xxxxx Xxxxx Xxxx 7
61 760052796 GECC WXH - Hilton Alpharetta 0000 Xxxxxxxx Xxxxx
68 760054198 GECC Parkside Professional Plaza 11440 Parkside Drive
73 760041373 GECC Xxx Xxxx Xxxx 00000 Xxxxxx Xxxxxxx
74 760055599 GECC Hilton Garden Inn Denver Airport 00000 Xxxx 00xx Xxxxxx
75 760043014 GECC Mammoth Professional Xxxxxxxx 000 Xxxxxx Xxxx
83 760047598 GECC Anchor Storage - N. Marysville 13733 Smokey Point Boulevard
87 760051980 GECC Keystone Commerce 000 Xxxxxxxx Xxxxx
88 760056457 GECC Xxxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx Xxxx
90 760020381 GECC Starlite 0000 Xxxxx Xxxxx Xxxxxx
91 760049857 GECC Xxxxxxxxxxx Apartments 000 Xxxxxxxxxx Xxxxx
92 760052141 GECC Backlick Self Storage 0000 Xxxxxxxxxx Xxxx
94 760046225 GECC The Grove Towne Center 0000 Xxxx Xxxxx Xxxxxx
Crossed Pool
96 760055159 GECC Xxxxxxxxx Xxxxxxx XXX 0000 Xxxx Xxxxxx Xxxxxx
97 760054238 GECC Mississippi MHP 000 0xx Xxxxxx
000 760049412 GECC Central Self Storage Xxxx City 000 00xx Xxxxxx
104 760053097 GECC Bay Bayou RV Resort 12622 Memorial Highway
111 760057037 GECC Plaza Xxxxxxx Xxxxxxx Xxxxxx Xxxx 000 - X Xxxx Xxx Xxxx
112 760048221 GECC Xxxxxxxx Xxxxxxx Xxxxxxxx 00000 Xxxxxxxx Xxxxxxx Drive
114 760050319 GECC 0000 Xxxxxx Xxx 0000 Xxxxxx Xxx
115 760053297 GECC Hampton Inn Austin Airport 0000 Xxxx Xxxxxxxxx Xxxxx
116 760051997 GECC Idlewood Oakland Ridge (Rollup) Various
116.1 760051997 GECC Oakland Ridge 0000 Xxxxxx Xxxxxx
116.2 760051997 GECC Idlewood MHP 000 Xxxxx Xxxx
118 760055417 XXXX Xxxxxx Xxxxxx Xxxxx X 0000-0000 Xxxx Highway
119 760055980 GECC Valley Plaza 0000-0000 Xxxx Xxxx Xxxxxx
121 760053318 GECC 000 Xxxxxx Xxxxxx Xxxxxxxxx 000 Xxxxxx Xxxxxx
122 760054000 GECC Xxxxxxxx Xxxxxx Xxxxxxxxxx 000 X.X. Xxxxxxxx Xxxxx Xxxx
128 760055977 GECC Ace Mini Storage 5525 Highway 169 North
130 760050018 GECC Vista Self Storage 0000 Xxxxxxxxxx Xxxx
131 760054498 GECC Westwood Office 9421, 9431, 0000 Xxx Xxxxxxx Xxxxxxx
132 760053959 GECC Xxxxxxxxxxx Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxx
135 760057624 GECC Xxxxxxxx Market 00000 Xxxxxxxx Xxxxxx
136 760053838 GECC Xxxxxxx Xxxx XXX 0000 XX Xxxxxxx Xxxx
137 760053098 GECC Xxxxxxx Xxxxx MHP 1032 Xxxxxxx Road
141 760053243 GECC 5 Star Storage of Xxxxx 0000 Xxxxx Xxxxxxx
143 760055757 GECC Sedona Mini Storage 0000 Xxxxxx Xxxxx and 2065/75 Contractors Road
144 760052903 GECC Xxxx X Xxxxxxxx 0000 Xxxxxx Xxxxxxx Xxxxxxx
145 760053978 GECC Xxxxxxxxxx Xxxxx XXX 0000 Xxxxxxxxx Xxxx
147 760053762 GECC Medallion/Highlands (Rollup) Various
147.1 760053762 GECC Medallion MHC 0000 Xxxxxxxx Xxxx
147.2 760053762 GECC Highlands MHC 000 Xxxx Xxxxxxx Xxxxxx
148 760057497 GECC Starlite Mobile Home Park-Olof 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx
149 760056497 GECC Noah's Ark Self Storage 6366 Xxxxxxx Road
150 760050523 GECC Rite Aid 000 Xxxx Xxxxxxx Xxxxxx
000 000000000 XXXX Xxxxxxx Xxxxxxx MHC 0000 Xxxxx Xxxxx Xxxx
152 760053757 GECC Capri Commons 000 Xxxxxx Xxxxx
153 760054240 GECC The Ravines MHP 2088 Empire Road
154 760054018 GECC Xxxxx Xxxxxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx
000 000000000 XXXX Xxxxx Self Storage 0000 Xxxxxxx Xxxx
157 760055017 GECC Xxxxxxxxxx Xxxxxxx 000 Xxxx Xxxx Xxxxx
158 760054344 XXXX Xxxxx Xxxxxx XXX 00000 Old Xxx Road., #78
161 760053679 GECC GGS Loganville 0000 Xxxxxxx Xxxxxxx
Totals
Sequence City State Zip Code Mortgage Rate (1) Amortization Basis (2) Original Balance
-------- ------------------ ------- -------- ----------------- ---------------------- ----------------
8 Various Various Various 6.180% Actual/360 $62,968,000
8.1 Xxxxxxx Xxxx XX 00000 $17,204,000
8.2 Xxxxx XX 00000 $9,817,000
8.3 Xxxxxxx XX 00000 $8,206,000
8.4 Xxxxxx XX 00000 $7,096,000
8.5 Xxxxxxxx XX 00000 $4,600,000
8.6 Xxxxxxxx XX 00000 $4,597,000
8.7 Xxxxxx XX 00000 $3,879,000
8.8 Xxxxxx XX 00000 $3,792,000
8.9 Xxxxxxx XX 00000 $3,777,000
9 Xxxxxxx XX 00000 6.200% Actual/360 $53,000,000
16 Xxx Xxxxxxx XX 00000 6.280% Actual/360 $45,000,000
23 Xxxxxxxx XX 00000 6.310% Actual/360 $30,239,000
37 Xxxxx XX 00000 5.910% Actual/360 $21,300,000
38 Xxxxxxxxx XX 00000 5.800% Actual/360 $20,315,000
40 Xxxxxxxx XX 00000 5.939% Actual/360 $19,928,000
41 Xxxxxxxxxxxx Xxxxx XX 00000 6.160% Actual/360 $19,000,000
45 Xxx Xxxxx XX 00000 5.950% Actual/360 $17,000,000
48 Xxxxxxxxxxx XX 00000 6.050% Actual/360 $16,000,000
49 Xxxxxxxx XX 00000 5.939% Actual/360 $15,643,000
55 Xxxxxxx XX 00000 5.939% Actual/360 $12,869,000
00 Xxxxxxxxxx Xxxxx XX 00000 6.230% Actual/360 $11,066,000
61 Xxxxxxxxxx XX 00000 5.939% Actual/360 $10,503,000
68 Xxxxxxxx XX 00000 6.060% Actual/360 $9,500,000
73 Xxxxxxx XX 00000 6.130% Actual/360 $8,600,000
74 Xxxxxx XX 00000 6.260% Actual/360 $8,600,000
75 Xxxxxxxxx XX 00000 6.010% Actual/360 $8,250,000
83 Xxxxxxxxxx XX 00000 6.130% Actual/360 $7,500,000
87 Xxxxxxxxxx XX 00000 6.020% Actual/360 $7,280,000
88 Xxxxxxx XX 00000 6.140% Actual/360 $7,225,000
90 Xxxxxxxxxxxxx XX 00000 7.520% Actual/360 $7,275,000
91 Xxxxxxxx XX 00000 5.560% Actual/360 $6,760,000
92 Xxxxxxxxxxx XX 00000 6.320% Actual/360 $6,700,000
94 Xxxx XX 00000 5.680% Actual/360 $6,522,000
96 Xxxxxxxx XX 00000 6.230% Actual/360 $3,175,000
00 Xxxx Xxxxxx XX 00000 6.170% Actual/360 $3,151,000
000 Xxxx Xxxx XX 00000 6.400% Actual/360 $6,100,000
000 Xxxxx XX 00000 5.730% Actual/360 $6,000,000
000 Xxxxx Xx XX 00000 6.110% Actual/360 $5,500,000
000 Xxxxxxxx XX 00000 6.450% Actual/360 $5,500,000
000 Xxxxxxxx XX 00000 5.250% Actual/360 $5,375,000
000 Xxxxxx XX 00000 6.520% Actual/360 $5,350,000
116 Various NY Various 6.080% Actual/360 $5,330,000
116.1 Xxxxxxxxx XX 00000 $4,284,440
116.2 Xxxxxxxxx XX 00000 $1,045,560
118 Xxxxx XX 00000 6.410% Actual/360 $5,301,000
000 Xx Xxxxxx XX 00000 6.180% Actual/360 $5,244,000
000 Xxxxxxx XX 00000 6.230% Actual/360 $5,048,000
000 Xxxxxxxxx XX 00000 6.210% Actual/360 $5,000,000
128 Xxxxxxxx XX 00000 6.250% Actual/360 $4,500,000
130 Xxxxxxx XX 00000 6.330% Actual/360 $4,500,000
000 Xxxxxxx XX 00000 6.300% Actual/360 $4,500,000
000 Xxxxxxxxxxx XX 00000 6.320% Actual/360 $4,272,000
135 Xxxxxxxxx XX 00000 6.070% Actual/360 $4,100,000
136 Xxxxxxxx XX 00000 6.090% Actual/360 $4,011,000
000 Xxxxx XX 00000 6.050% Actual/360 $4,000,000
000 Xxxxx XX 00000 6.250% Actual/360 $3,930,000
000 Xxxxxx XX 00000 6.310% Actual/360 $3,700,000
000 Xxxxxxxxxx XX 00000 5.870% Actual/360 $3,600,000
000 Xxxx Xxxxx XX 00000 6.100% Actual/360 $3,500,000
147 Various Various Various 6.260% Actual/360 $3,350,000
147.1 Xxxxxxx XX 00000 $2,272,515
147.2 Xxxxxxxxx XX 00000 $1,077,485
148 Xxxxx XX 00000 6.200% Actual/360 $3,325,000
000 Xxx Xxxxxxx XX 00000 6.380% Actual/360 $3,078,000
000 Xxxxxx XX 00000 6.060% Actual/360 $3,050,000
000 Xxxxxx Xxxx XX 00000 6.370% Actual/360 $3,049,000
000 Xxxx Xxxxxx Xxxxx XX 00000 6.200% Actual/360 $3,000,000
000 Xxxxxx Xxxxxxxx XX 00000 6.230% Actual/360 $2,950,000
000 Xxxxx XX 00000 6.680% Actual/360 $2,900,000
156 Xxxxxxxxxx XX 00000 6.450% Actual/360 $2,718,000
000 Xxxxx Xxxxx XX 00000 6.030% Actual/360 $2,700,000
000 Xxxx Xxxxx XX 00000 6.340% Actual/360 $2,650,000
000 Xxxxxxxxxx XX 00000 6.110% Actual/360 $2,200,000
Sequence Cut-off Date Balance Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date
-------- -------------------- ------------------------------------------ -------------------- --------
8 $62,968,000 119 7/1/2016 1st
8.1 $17,204,000
8.2 $9,817,000
8.3 $8,206,000
8.4 $7,096,000
8.5 $4,600,000
8.6 $4,597,000
8.7 $3,879,000
8.8 $3,792,000
8.9 $3,777,000
9 $53,000,000 58 6/1/2011 1st
16 $45,000,000 120 8/1/2016 1st
23 $30,239,000 118 6/1/2016 1st
37 $21,300,000 119 7/1/2016 1st
38 $20,315,000 120 8/1/2016 1st
40 $19,928,000 118 6/1/2016 1st
41 $19,000,000 121 9/1/2016 1st
45 $17,000,000 119 7/1/2016 1st
48 $16,000,000 118 6/1/2016 1st
49 $15,643,000 118 6/1/2016 1st
55 $12,869,000 118 6/1/2016 1st
58 $11,066,000 120 8/1/2016 1st
61 $10,503,000 118 6/1/2016 1st
68 $9,500,000 121 9/1/2016 1st
73 $8,600,000 120 8/1/2016 1st
74 $8,589,574 59 7/1/2011 1st
75 $8,250,000 121 9/1/2016 1st
83 $7,500,000 119 7/1/2016 1st
87 $7,280,000 117 5/1/2016 1st
88 $7,225,000 120 8/1/2016 1st
90 $6,885,887 54 2/1/2011 1st
91 $6,760,000 118 6/1/2016 1st
92 $6,688,598 118 6/1/2016 1st
94 $6,522,000 118 6/1/2016 1st
96 $3,175,000 121 9/1/2016 1st
97 $3,151,000 121 9/1/2016 1st
101 $6,100,000 119 7/1/2016 1st
104 $6,000,000 118 6/1/2016 1st
111 $5,500,000 120 8/1/2016 1st
112 $5,500,000 241 9/1/2026 1st
114 $5,375,000 115 3/1/2016 1st
115 $5,341,306 118 6/1/2016 1st
116 $5,330,000 118 6/1/2016 1st
116.1 $4,284,440
116.2 $1,045,560
118 $5,297,067 119 7/1/2016 1st
119 $5,244,000 120 8/1/2016 1st
121 $5,048,000 118 6/1/2016 1st
122 $5,000,000 120 7/31/2016 1st
128 $4,500,000 119 7/1/2016 1st
130 $4,500,000 119 7/1/2016 1st
131 $4,500,000 119 7/1/2016 1st
132 $4,272,000 117 5/1/2016 1st
135 $4,100,000 120 8/1/2016 1st
136 $4,011,000 83 7/1/2013 1st
137 $4,000,000 120 8/1/2016 1st
141 $3,930,000 120 8/1/2016 1st
143 $3,700,000 118 6/1/2016 1st
144 $3,592,675 119 7/1/2016 1st
145 $3,500,000 121 9/1/2016 1st
147 $3,347,410 119 7/1/2016 1st
147.1 $2,270,758
147.2 $1,076,652
148 $3,325,000 120 8/1/2016 1st
149 $3,078,000 60 8/1/2011 1st
150 $3,050,000 120 8/1/2016 1st
151 $3,049,000 60 8/1/2011 1st
152 $3,000,000 61 9/1/2011 1st
153 $2,950,000 120 8/1/2016 1st
154 $2,900,000 84 8/1/2013 1st
156 $2,718,000 118 6/1/2016 1st
157 $2,700,000 60 8/1/2011 1st
158 $2,645,511 58 6/1/2011 1st
161 $2,196,073 118 6/1/2016 1st
$584,258,102
Sequence Monthly Payment Administrative Fee Rate (3) Primary Servicing Fee Rate Master Servicing Fee Rate
-------- --------------- --------------------------- -------------------------- -------------------------
8 $384,843 0.021% 0.010% 0.020%
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
8.9
9 $277,637 0.021% 0.010% 0.020%
16 $238,771 0.021% 0.010% 0.020%
23 $187,368 0.021% 0.010% 0.020%
37 $126,474 0.021% 0.010% 0.020%
38 $119,199 0.021% 0.010% 0.020%
40 $118,698 0.021% 0.010% 0.020%
41 $115,876 0.021% 0.010% 0.020%
45 $85,462 0.021% 0.010% 0.020%
48 $96,443 0.021% 0.010% 0.020%
49 $93,175 0.021% 0.010% 0.020%
55 $76,652 0.021% 0.010% 0.020%
58 $67,991 0.021% 0.010% 0.020%
61 $62,559 0.021% 0.010% 0.020%
68 $61,558 0.021% 0.010% 0.020%
73 $52,282 0.071% 0.060% 0.070%
74 $56,785 0.021% 0.010% 0.020%
75 $41,893 0.021% 0.010% 0.020%
83 $45,595 0.021% 0.010% 0.020%
87 $43,741 0.021% 0.010% 0.020%
88 $47,171 0.061% 0.050% 0.060%
90 $50,968 0.021% 0.010% 0.020%
91 $38,637 0.021% 0.010% 0.020%
92 $41,559 0.021% 0.010% 0.020%
94 $37,771 0.021% 0.010% 0.020%
96 $19,508 0.021% 0.010% 0.020%
97 $19,238 0.021% 0.010% 0.020%
101 $38,156 0.021% 0.010% 0.020%
104 $34,938 0.021% 0.010% 0.020%
111 $33,365 0.021% 0.010% 0.020%
112 $40,845 0.081% 0.070% 0.080%
114 $23,842 0.021% 0.010% 0.020%
115 $33,886 0.021% 0.010% 0.020%
116 $32,231 0.021% 0.010% 0.020%
116.1
116.2
118 $33,193 0.021% 0.010% 0.020%
119 $32,050 0.021% 0.010% 0.020%
121 $31,016 0.021% 0.010% 0.020%
122 $30,656 0.021% 0.010% 0.020%
128 $27,707 0.021% 0.010% 0.020%
130 $27,942 0.021% 0.010% 0.020%
131 $27,854 0.021% 0.010% 0.020%
132 $26,498 0.021% 0.010% 0.020%
135 $24,766 0.021% 0.010% 0.020%
136 $24,281 0.021% 0.010% 0.020%
137 $24,111 0.021% 0.010% 0.020%
141 $24,198 0.061% 0.050% 0.060%
143 $22,926 0.021% 0.010% 0.020%
144 $25,522 0.081% 0.070% 0.080%
145 $21,210 0.021% 0.010% 0.020%
147 $20,648 0.021% 0.010% 0.020%
147.1
147.2
148 $20,365 0.021% 0.010% 0.020%
149 $19,213 0.021% 0.010% 0.020%
150 $18,404 0.021% 0.010% 0.020%
151 $19,012 0.021% 0.010% 0.020%
152 $18,374 0.021% 0.010% 0.020%
153 $18,125 0.021% 0.010% 0.020%
154 $18,675 0.021% 0.010% 0.020%
156 $17,090 0.021% 0.010% 0.020%
157 $16,240 0.021% 0.010% 0.020%
158 $16,472 0.021% 0.010% 0.020%
161 $13,346 0.071% 0.060% 0.070%
Sequence Ownership Interest Cross-Collateralized Loans Original Amortization (months) ARD Loan Grace Period Loan Group
-------- ------------------ -------------------------- ------------------------------ -------- ------------ ----------
8 Fee No 360 No 5 1
8.1 Fee 1
8.2 Fee 1
8.3 Fee 1
8.4 Fee 1
8.5 Fee 1
8.6 Fee 1
8.7 Fee 1
8.8 Fee 1
8.9 Fee 1
9 Fee No 0 No 5 1
16 Fee No 0 Xx 0 0
00 Xxx Xx 000 Xx 5 1
37 Fee No 360 Xx 0 0
00 Xxx Xx 000 Xx 5 2
40 Fee No 360 Xx 0 0
00 Xxx Xx 000 Xx 5 1
45 Fee No 0 Xx 0 0
00 Xxx Xx 000 Xx 5 1
49 Fee No 360 Xx 0 0
00 Xxx Xx 000 Xx 5 1
58 Fee No 360 Xx 0 0
00 Xxx Xx 000 Xx 5 1
68 Fee Xx 000 Xx 0 0
00 Xxx Xx 360 Xx 0 0
00 Xxx Xx 000 Xx 5 1
75 Fee No 0 Xx 0 0
00 Xxx Xx 000 Xx 5 1
87 Fee No 360 Xx 0 0
00 Xxx Xx 000 Xx 5 2
90 Fee No 360 Yes 5 1
91 Fee No 360 Xx 0 0
00 Xxx Xx 000 Xx 5 1
94 Fee No 360 No 5 1
96 Fee Yes - BACM 06-4 A 360 No 5 1
97 Fee Yes - BACM 06-4 A 360 No 5 1
101 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
111 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
114 Fee No 0 No 5 1
115 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
116.1 Fee 1
116.2 Fee 1
118 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
121 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 2
128 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
131 Fee No 360 No 5 1
132 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
136 Fee No 360 No 5 2
137 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
143 Fee/Leasehold No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
145 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 2
147.1 Fee 2
147.2 Fee 2
148 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
150 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
152 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 2
154 Leasehold No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
157 Fee No 360 Xx 0 0
000 Xxx Xx 000 Xx 5 1
161 Fee No 360 No 5 1
1) Rates are to full precision in the "BACM2006_4.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
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Schedule II, the phrase "the Seller's
knowledge" and other words and phrases of like import shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
regarding the matters referred to, in each case without having conducted any
independent inquiry into such matters and without any obligation to have done so
(except as expressly set forth herein).
Unless otherwise specified in the exceptions to the representations
and warranties attached hereto, the Seller hereby represents and warrants that,
as of the date specified below or, if no such date is specified, as of the
Closing Date and subject to Section 19 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this Agreement
and as of the Cut-off Date.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interest, participation interests and/or other interests and encumbrances (other
than rights to servicing and related compensation as set forth in the Agreement
to Appointment of Servicer). The Seller has validly and effectively conveyed to
the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (other than rights to servicing and related compensation as set
forth in the Agreement to Appointment of Servicer); provided that recording
and/or filing of various transfer documents are to be completed after the
Closing Date as contemplated hereby and by the Pooling and Servicing Agreement;
provided, if the related assignment of Mortgage and/or assignment of Assignment
of Leases has been recorded in the name of Mortgage Electronic Registration
Systems, Inc. ("MERS") or its designee, no assignment of Mortgage and/or
assignment of Assignment of Leases in favor of the Trustee will be required to
be prepared or delivered and instead, the Seller shall take all actions as are
necessary to cause the Trust to be shown as the owner of the Mortgage Loan on
the records of MERS for purposes of the system of recording transfers of
beneficial ownership of mortgages maintained by MERS. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent which has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or its designee and each such endorsement is, or shall be as of the
Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date since
origination, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Based on the related lender's title
insurance policy (or, if not yet issued, a pro forma title policy or a
"marked-up" commitment), the Mortgage related to and delivered in connection
with each Mortgage Loan constitutes a valid and, subject to the exceptions set
forth in Paragraph 13 below, enforceable first priority lien upon the related
Mortgaged Property, prior to all other liens and encumbrances, except for: (a)
the lien for current real estate taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment), none of which, individually or in the aggregate, materially
interferes with the security intended to be provided by such Mortgage, the
current principal use and operation of the related Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan; (c) exceptions and exclusions specifically
referred to in such lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or "marked-up" commitment), none of
which, individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; (d) other matters to which like properties are commonly subject,
none of which, individually or in the aggregate, materially interferes with the
security intended to be provided by such Mortgage, the current principal use and
operation of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service the related
Mortgage Loan; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property which the
Seller did not require to be subordinated to the lien of such Mortgage and which
do not, individually or in the aggregate, materially interfere with the security
intended to be provided by such Mortgage; and (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized Group (the
foregoing items (a) through (f) being herein referred to as the "Permitted
Encumbrances"). The related assignment of such Mortgage executed and delivered
in favor of the Trustee is in recordable form (but for insertion of the name of
the assignee and any related recording information which is not yet available to
the Seller) and constitutes a legal, valid and binding assignment of such
Mortgage from the relevant assignor to the Trustee; provided, if the related
assignment of Mortgage has been recorded in the name of MERS or its designee, no
assignment of Mortgage in favor of the Trustee will be required to be prepared
or delivered and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial ownership
of mortgages maintained by MERS.
5. Assignment of Leases and Rents. The Assignment of Leases, if any,
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Seller), and constitutes a legal, valid and binding assignment of such
Assignment of Leases from the relevant assignor to the Trustee; provided, if the
related assignment of Assignment of Leases has been recorded in the name of MERS
or its designee, no assignment of Assignment of Leases in favor of the Trustee
will be required to be prepared or delivered and instead, the Seller shall take
all actions as are necessary to cause the Trust to be shown as the owner of the
Mortgage Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File: (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded; (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage; and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part, in each such
event in a manner which would materially interfere with the benefits of the
security intended to be provided by such Mortgage.
7. Casualty; Condemnation; Encroachments. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared in
connection with the origination of such Mortgage Loan and included in the
Servicing File, the related Mortgaged Property is: (a) free and clear of any
damage caused by fire or other casualty which would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds or insurance coverage exists reasonably estimated to be
sufficient to effect the necessary repairs and maintenance), and (b) not the
subject of any proceeding pending for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's
knowledge (based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan: (a) all of the material
improvements on the related Mortgaged Property lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value or marketability of such Mortgaged
Property, and (b) no improvements on adjoining properties materially encroached
upon such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments that are
insured against by the lender's title insurance policy referred to in Paragraph
8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy or a "marked up" commitment) in the original
principal amount of such Mortgage Loan (or, with respect to any split Mortgage
Loan, the amount of the related Whole Loan) after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the exceptions stated therein. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Seller's knowledge, no material claims have been made thereunder and no claims
have been paid thereunder. To the Seller's knowledge, no holder of the related
Mortgage has done, by act or omission, anything that would materially impair the
coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (except in the case of a
Mortgage Loan maintained on the records of MERS, including endorsement and
delivery of the related Mortgage Note to the Purchaser and recording of the
related Assignment of Mortgage in favor of Purchaser in the applicable real
estate records), such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. Such Title Policy contains no exclusion
for, or it affirmatively insures (unless the related Mortgaged Property is
located in a jurisdiction where such affirmative insurance is not available),
(a) access to a public road, and (b) that the area shown on the survey, if any,
reviewed or prepared in connection with the origination of the related Mortgage
Loan is the same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions including, without limitation, foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located) and, subject to the exceptions set forth in Paragraph 13
below, enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Borrower or in connection with any full or partial release of the
related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. With respect to each Mortgaged
Property securing a Mortgage Loan: (a) an environmental site assessment, an
environmental site assessment update or a transaction screen was performed in
connection with the origination of such Mortgage Loan; (b) a report of each such
assessment, update or screen, if any (an "Environmental Report"), is included in
the Servicing File; and (c) either: (i) no such Environmental Report, if any,
provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) the related Borrower was required to provide additional
security and/or to obtain an operations and maintenance plan, (B) the related
Borrower provided a "no further action" letter or other evidence acceptable to
the Seller, in its sole discretion, that applicable federal, state or local
governmental authorities had no current intention of taking any action, and are
not requiring any action, in respect of such condition or circumstance, (C) such
conditions or circumstances were investigated further and based upon such
additional investigation, an independent environmental consultant recommended no
further investigation or remediation, (D) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser of (a) 10% of
the outstanding principal balance of the related Mortgage Loan and (b) two
million dollars, (E) there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (F) the related Borrower
or another responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions that were recommended in the
environmental site assessment, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions; (H) a responsible party provided a guaranty or indemnity to the
related Borrower to cover the costs of any required investigation, testing,
monitoring or remediation; or (I) a party or parties unrelated to the related
Borrower has been identified as the responsible party for such circumstances or
conditions and the Borrower is not a responsible party for such circumstances or
conditions. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to Seller at the issue of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. The Mortgage or another loan
document for each Mortgage Loan encumbering the Mortgaged Property requires the
related Borrower to comply with all applicable federal, state and local
environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower or any guarantor of
non-recourse exceptions and/or environmental liability with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (a) bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (a) and (b)) such limitations or unenforceability will not
render such loan documents invalid as a whole or substantially interfere with
the mortgagee's realization of the principal benefits and/or security provided
thereby. As of the Cut-off Date, there is no valid defense, counterclaim or
right of offset, rescission, abatement or diminution available to the related
Borrower with respect to such Mortgage Note, Mortgage or other agreements that
would deny the mortgagee the principal benefits intended to be provided thereby.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage greater than or equal to gross
rentals for at least (A) 12 months or (B) for the restoration period plus 180
days. If any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Federal Emergency Management
Agency ("FEMA") as a special flood hazard area (Zone A or Zone V) (an "SFH
Area"), and flood insurance was available and was required to be maintained by
FEMA, a flood insurance policy meeting the requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without thirty (30) days' prior written notice
to the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. For each Mortgaged Property
located in a Zone 3 or Zone 4 seismic zone, either: (i) a seismic report which
indicated a PML of less than or equal to 20% was prepared, based on a 450 or
475-year look back with a 10% probability of exceedance in a 50-year period, at
origination for such Mortgaged Property or (ii) the improvements for the
Mortgaged Property are insured against earthquake damage. If the Mortgaged
Property is located in Florida or within 25 miles of the coast of Texas,
Louisiana, Mississippi, Alabama, Georgia, North Carolina or South Carolina such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the full insurable value, or 100% of the replacement cost, of the
improvements located on the related Mortgaged Property. With respect to each
Mortgage Loan that has a principal balance as of the origination date that is
greater than or equal to $20,000,000, the related all risk insurance policy and
business interruption policy do not specifically exclude acts of terrorism from
coverage. With respect to each other Mortgage Loan, the related all risk
insurance policy and business interruption policy did not as of the date of
origination of the Mortgage Loan, and, to the Seller's knowledge, does not as of
the date hereof, specifically exclude acts of terrorism from coverage or
separate coverage has been obtained. With respect to each of the Mortgage Loans,
the related Mortgage Loan documents do not expressly waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability. With respect to each Mortgage
Loan, the related Mortgage Loan documents require that the related Borrower or a
tenant of such Borrower maintain insurance as described above or permits the
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will be applied in accordance with the related Mortgage Loan documents
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 Loan documents may entitle the related Borrower to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Borrower holds a leasehold interest in the related
Mortgaged Property, the application of such proceeds will be subject to the
terms of the related Ground Lease (as defined in Paragraph 18 below). At
origination, the Seller received evidence that each Mortgaged Property was
insured by a commercial general liability policy in an amount not less than
$1,000,000 per occurrence.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that are not otherwise covered by an escrow of
funds sufficient to pay such charge. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered delinquent
until the date on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. At the time of origination of the subject
Mortgage Loan and as of the Cut-off Date no Borrower under a Mortgage Loan was a
debtor in any state or federal bankruptcy, insolvency or similar proceeding. As
of the Closing Date, to the Seller's knowledge, no Borrower under a Mortgage
Loan was a debtor in any state or federal bankruptcy, insolvency or similar
proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or a representation of the
related Borrower at the time of origination of the subject Mortgage Loan, or
based on such other due diligence considered reasonable by prudent commercial
mortgage lenders in the lending area where the subject Mortgaged Property is
located, the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning laws
and ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged Property as
determined by the appraisal performed in connection with the origination of such
Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) Based on the related Title Policy (or, if not yet issued, a pro
forma title policy or a "marked up" commitment), the related
lessee's leasehold interest in the portion of the related Mortgaged
Property covered by such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to,
but without the consent of, the lessor thereunder (or, if such
consent is required, it either has been obtained or cannot be
unreasonably withheld); provided that such Ground Lease has not been
terminated and all amounts owed thereunder have been paid;
(d) The Seller has not received, as of the Closing Date, actual notice
(nor is the Seller otherwise aware) that such Ground Lease is not in
full force and effect or that any material default has occurred
under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered
to such mortgagee in the manner described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain
possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder
may terminate such Ground Lease;
(g) Such Ground Lease, together with extension options that are
exercisable by the Borrower or by the lender upon its taking
possession of the Borrower's leasehold interest, if exercised, would
cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
a mortgagee upon termination of such Ground Lease as a result of any
default or as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Borrower unless the
mortgagee under such Mortgage Loan fails to cure a curable default
of the lessee under such Ground Lease following notice thereof from
the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with
the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the Mortgaged
Property is located at the time of the origination of such Mortgage
Loan; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan, and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)). Accordingly, the Seller represents and warrants that
each Mortgage Loan is directly secured by a Mortgage on a commercial property or
a multifamily residential property, and either (1) substantially all of the
proceeds of such Mortgage Loan were used to acquire, improve or protect the
portion of such commercial or multifamily residential property that consists of
an interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was the
only security for such Mortgage Loan as of the Testing Date (as defined below),
or (2) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of the Mortgage
Loan (a) as of the Testing Date, or (b) as of the Closing Date. For purposes of
the previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is on a
parity with the Mortgage Loan, and (2) the "Testing Date" shall be the date on
which the referenced Mortgage Loan was originated unless (a) such Mortgage Loan
was modified after the date of its origination in a manner that would cause
"significant modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (b) such "significant modification" did not
occur at a time when such Mortgage Loan was in default or when default with
respect to such Mortgage Loan was reasonably foreseeable. However, if the
referenced Mortgage Loan has been subjected to a "significant modification"
after the date of its origination and at a time when such Mortgage Loan was not
in default or when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred.
20. Advancement of Funds. The Seller has not advanced funds or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (other than amounts paid by the
tenant as specifically provided under the related lease), for the payment of any
amount required by such Mortgage Loan, except for interest accruing from the
date of origination of such Mortgage Loan or the date of disbursement of the
Mortgage Loan proceeds, whichever is later, to the date which preceded by 30
days the first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the Borrower under any Mortgage Loan or the
related Mortgaged Property that, if determined adversely to such Borrower or
Mortgaged Property, would materially and adversely affect the value of the
Mortgaged Property as security for such Mortgage Loan or the current ability of
the Borrower to pay principal, interest or any other amounts due under such
Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by any mortgage
liens junior to or of equal priority with the liens of the related Mortgage.
24. No Mechanics' Liens. (a) each Mortgaged Property securing a
Mortgage Loan (exclusive of any related personal property) is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to the
lien of the related Mortgage and that are not bonded or escrowed for or covered
by title insurance, and (b) no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage and that is not bonded or escrowed for or covered by title insurance.
25. Compliance with Usury Laws. As of its date of origination, each
Mortgage Loan complied with, or was exempt from, all applicable usury laws.
26. Licenses and Permits. As of the date of origination of each
Mortgage Loan and based on any of: (a) a letter from governmental authorities,
(b) a legal opinion, (c) an endorsement to the related Title Policy, (d) a
representation of the related borrower at the time of origination of such
Mortgage Loan, (e) a zoning report from a zoning consultant, or (f) other due
diligence that the originator of the Mortgage Loan customarily performs in the
origination of comparable mortgage loans, the related Borrower was in possession
of all material licenses, permits and franchises required by applicable law for
the ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool except
that for an A/B Mortgage Loan the related Companion Loan is secured by the
related Mortgage.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (a) payment
in full of all amounts due under the related Mortgage Loan or (b) delivery of
U.S. Treasury securities in connection with a full or partial defeasance of the
related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of portions of the related Mortgaged Property or the release of one or
more related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements, (b) the payment of a release price at least equal to
all amounts due and owing under such Mortgage Loan (or, in the case of a partial
release, the related allocated loan amount) in respect of the Mortgaged Property
to be released and, if required by the related Mortgage Loan documents,
prepayment consideration in connection therewith or (c) the substitution of real
property collateral upon the satisfaction of certain legal and underwriting
requirements; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan. The
release provisions in any Mortgage Loan if exercised would not cause such
Mortgage Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3) of the Code.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance in an amount to make all
scheduled payments under the Mortgage Note either through and including the
maturity date of the loan or to the first date that the Borrower can prepay the
Loan without a prepayment premium (a) no earlier than two years following the
Closing Date and (b) only with substitute collateral constituting "government
securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i).
30. Defeasance Costs. If any Mortgage Loan permits defeasance, then
the related Mortgage Loan documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. In connection with the origination of each Mortgage
Loan, the related originator inspected, or caused the inspection of, the related
Mortgaged Property.
33. No Material Default. There exists no material default, breach,
violation or event of acceleration under the Mortgage Note or Mortgage for any
Mortgage Loan and Seller has not received notice of any 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 such documents, in any such case to the extent the same materially and
adversely affects the value of the Mortgage Loan and/or the related Mortgaged
Property; provided, however, that this representation and warranty does not
cover any default, breach, violation or event of acceleration that specifically
pertains to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Schedule II or by the
exceptions set forth on Schedule IIA.
34. Due-on-Sale. Subject to exceptions (including but not limited to
existing and future mezzanine debt) mentioned in the related Mortgage Loan
Documents, the Mortgage for each Mortgage Loan contains a "due-on-sale" clause
that provides for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without the prior written consent of the
holder, the Mortgaged Property subject to such Mortgage, or any controlling
interest in the related Borrower, is directly or indirectly transferred or sold.
35. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $25,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity separate
and apart from any other person.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy or in certain instances an application has been made to the
applicable governing authority for creation of separate tax lots which shall be
effective for the next tax year.
38. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy or pollution legal liability policy, then the Seller has delivered or
caused to be delivered to the insurer under such policy copies of all
environmental reports in the Seller's possession related to such Mortgaged
Property to the extent that the failure to deliver any such report would
materially and adversely affect the Purchaser's ability to recover under such
policy.
39. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
40. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Borrower, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan at least annually with
operating statements and, if there is more than one tenant, rent rolls for the
related Mortgaged Property and/or financial statements of the related Borrower.
41. Servicing Rights. Except as otherwise contemplated in this
Agreement (or in the Agreement to Appointment of Servicer dated as of the
Cut-off Date between the Seller and the Master Servicer), no Person has been
granted or conveyed the right to service any Mortgage Loan or receive any
consideration in connection therewith.
42. Recourse. The related Mortgage Loan documents contain standard
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower for
damages sustained in connection with the Borrower's fraud, material
misrepresentation (or, alternatively, intentional) or misappropriation of any
tenant security deposits, rent, insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Borrower, a principal of such Borrower or an entity controlled by a principal of
such Borrower has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental laws.
43. Assignment of Collateral. All of the Seller's interest in any
material collateral securing any Mortgage Loan has been assigned to the
Purchaser.
44. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
45. Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America or the
District of Columbia.
46. Servicing and Collection. The servicing and collection practices
of the Seller or a servicer retained by the Seller with respect to the Mortgage
Loans has been legal, proper and prudent in all material respects.
47. Escrows. As of the date of origination, all escrow deposits and
payments relating to a Mortgage Loan were under the control of the originator
and all amounts required to be deposited by each Borrower were deposited.
48. UCC Financing Statements. UCC Financing Statements have been
filed and/or recorded (or, if not filed and/or recorded, have been submitted in
proper form for filing and recording), in all public places necessary at the
time of the origination of the Mortgage Loan to perfect a valid security
interest in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related Mortgaged
Property (other than any personal property subject to a purchase money security
interest or a sale and leaseback financing arrangement permitted under the terms
of such Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). An assignment of each such UCC Financing Statement relating to the
Mortgage Loan has been completed or will be prepared in which such Financing
Statement was filed; provided, if the related security agreement and/or UCC
Financing Statement has been recorded in the name of MERS or its designee, no
assignment of security agreement and/or UCC Financing Statement in favor of the
Trustee will be required to be prepared or delivered and instead, the Seller
shall take all actions as are necessary to cause the Trust to be shown as the
owner of the Mortgage Loan on the records of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to the
extent that possession or control of such items or actions other than the filing
of UCC Financing Statements are required in order to effect such perfection.
49. Appraisal. The appraisal obtained in connection with the
origination of each Mortgage Loan satisfied, based solely upon the related
appraiser's representation in the related appraisal or in a related supplemental
letter, the appraisal guidelines set forth in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (as amended).
50. Legal Compliance - Origination, Funding and Servicing. As of the
date of its origination and to the Seller's knowledge as of the Cut-off Date,
each Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of applicable federal, state or local law relating to the
origination, funding and servicing of such Mortgage Loan.
51. Additional Collateral. Each related Mortgage does 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 any other Mortgage Loan. The Mortgage Note is not secured
by any collateral that is not included in the Trust Fund.
52. Advances After Origination. 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, other than earnout advances made in accordance with the Mortgage
Loan documents and reflected in the loan balance on the Mortgage Loan Schedule.
53. Originator Authorization. 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.
54. Capital Contributions. Neither the Seller nor any affiliate
thereof has any obligation to make any capital contributions to the Mortgagor
under the Mortgage Loan.
55. Appointment of Receiver. If the Mortgaged Property is subject to
any leases, the Borrower is the owner and holder of the landlord's interest
under any leases and the related Mortgage and assignment of rents provides for
the appointment of a receiver for rents or allows the mortgagee to enter into
possession to collect rent or provides for rents to be paid directly to the
mortgagee in the event of default.
SCHEDULE IIA
Exceptions to Representations and Warranties:
GE Capital Loans
GE Pool 32/BACM 2006-4
[References are to corresponding mortgage loan representations set forth in
Exhibit E to Mortgage Loan Purchase and Sale Agreement. Underlined titles are
provided to facilitate reference only]
(i) Mortgage Loan Schedule.
(ii) Ownership of Mortgage Loans.
(iii) Payment Record.
(iv) Lien; Valid Assignment.
o WXH - Hilton Alpharetta (00-0000000) ($10,503,000): Franchisor
(Hilton Inns, Inc) has Right of First Refusal (ROFR) that
affects entirety of the mortgaged property; ROFR is not
extinguished by foreclosure; Foreclosure/deed-in-lieu does not
constitute trigger event, however
o Hilton Garden Inn Denver Airport (00-0000000) ($8,600,000):
Franchisor (Hilton Inns, Inc.) has Right of First Refusal
(ROFR) that affects entirety of the mortgaged property; ROFR
is not extinguished by foreclosure; Foreclosure/deed-in-lieu
is not trigger event, however
o Fountain Oaks Apts. (00-0000000)($7,225,000): Property
developed pursuant to Low Income Housing Tax Credits; Current
quoted and market rents are below the rent levels established
by applicable leasing restrictions, however
o Central Self Storage Xxxx City (00-0000000) ($6,100,000):
Condominium declaration affects the mortgaged property in
connection with an association established to accommodate an
on-site police station; Borrower owns approximately 90% of the
voting ownership comprising the regime, however, and
effectively controls the owners' association
o Bay Bayou RV Resort (00-0000000) ($6,000,000): Florida statute
confers Right of First Refusal (ROFR) to owner's association;
ROFR is not extinguished by foreclosure;
Foreclosure/deed-in-lieu does not constitute trigger event,
however
o Medallion/Highlands (00-0000000) ($3,350,000): Florida statute
confers right of first refusal to owner's association; ROFR is
not extinguished by foreclosure; Foreclosure/deed-in-lieu does
not constitute trigger event, however
o Cabot Medical Center (00-0000000) ($2,900,000): Tenant (Cabot
Imaging) has purchase option that is exercisable beginning in
2013 (loan matures in 2013); Option price is based on fair
market value; Foreclosure does not extinguish purchase option
o Buttonwood Village (00-0000000) ($2,700,000): Florida statute
confers right of first refusal to owner's association
(extended in this instance from 45 days provided by statute to
120 days; ROFR is not extinguished by foreclosure;
Foreclosure/deed-in-lieu does not constitute trigger event and
debt service escrow obtained as mitigant, however
(v) Assignment of Leases and Rents.
(vi) Mortgage Status; Waivers and Modifications.
(vii) Casualty; Condemnation; Encroachments.
(viii) Title Insurance.
(ix) No Holdback.
(x) Mortgage Provisions.
(xi) Trustee under Deed of Trust.
(xii) Environmental Conditions.
(xiii) Loan Document Status.
(xiv) Insurance.
o Starlite (00-0000000)($7,275,000): Loan was originated in
February 2001; Loan documents do not expressly require
terrorism insurance, nor is there carve-out for related
losses; No express prohibition against terrorism insurance and
current coverage in place until 05.12.07, however
o Bay Bayou RV Resort (00-0000000) ($6,000,000): Terrorism
insurance not required until policy rollover (10.09.06)
o Medallion/Highlands (00-0000000) ($3,350,000): Terrorism
insurance expressly waived for life of loan; Non-recourse
carve-out from warm body indemnitor obtained for related
losses and current coverage in place until 05.20.07, however
o Marysville Farms MHP (00-0000000) ($3,358,000): Terrorism
insurance expressly waived for life of loan; Non-recourse
carve-out from warm body indemnitor obtained for related
losses and current coverage in place until 10.01.2006, however
o Capri Commons (00-0000000) ($3,000,000): Rent loss coverage is
$17,500 (approximately 1 months' gross income), with limited
guaranty for difference between insured amount and amount
equal to 12 months of property income; also, (ii) terrorism
insurance waived for life of loan; Non-recourse carve-out
obtained for related losses, however
o Buttonwood Village (00-0000000) ($2,700,000): (i) Terrorism
insurance expressly waived for life of loan; and (ii) Loan
documents require rent loss insurance in amount equal to
greater of (A) annual principal, interest, taxes and
insurance, or (B) $328,000 (5.5 months of estimated rent
rather than 12 months); Loan LTV of 48% with a debt service
coverage of 2.09x, however
(xv) Taxes and Assessments.
(xvi) Borrower Bankruptcy.
(xvii) Local Law Compliance.
(xviii) Leasehold Estate Only.
o Sedona Mini Storage (00-0000000) ($3,700,000): Part Fee/Part
Leasehold, Fee Not subordinated; One of parcels comprising 11%
of mortgaged property (2115 Contractors Road) is subject to
ground lease; Latest ground lease maturity date is 07.31.2026
(loan maturity is 06.01.2016 with amortization through 2036);
Variations from Requirements: (g) Ground lease term (with
extensions) is not 20 years past loan maturity
(xix) Qualified Mortgage.
(xx) Advancement of Funds.
(xxi) No Equity Interest, Equity Participation or Contingent Interest.
(xxii) Legal Proceedings.
(xxiii) Other Mortgage Liens.
o Cardenas Market-Coachella (00-0000000)($4,100,000): Future
secured subordinate debt from subordinate lender approved by
lender and applicable rating agencies permitted subject to
certain conditions, including (i) combined LTV shall not
exceed 65%; (ii) combined DSCR shall not be less than 1.40x;
(iii) lender approval of subordinate debt documents, including
subordination/standstill agreement; and (iv) Sub debt is
non-transferable during loan term
o Buttonwood Village (00-0000000) ($2,700,000): $705,900
existing secured subordinate debt owed by Borrower to the U.S.
Small Business Administration (SBA); SBA note and right of SBA
to receive payments is junior and subordinate to lender's note
and rights of holder of lender's note; 2.9% interest rate;
30-year term; SBA Note is cross-defaulted with lender's note
(xxiv) No Mechanics' Liens.
(xxv) Compliance with Usury Laws.
(xxvi) Licenses and Permits.
(xxvii) Cross-Collateralization.
(xxviii) Releases of Mortgaged Properties.
(xxix) Defeasance.
(xxx) Defeasance Costs.
(xxxi) Fixed Rate Loans.
(xxxii) Inspection.
(xxxiii) No Material Default.
(xxxiv) Due-on-Sale.
(xxxv) Single Purpose Entity.
(xxxvi) Whole Loan.
(xxxvii) Tax Parcels.
(xxxviii) Disclosure to Environmental Insurer.
(xxxix) Prepayment Premiums and Yield Maintenance Charges.
(xl) Operating Statements.
(xli) Servicing Rights.
(xlii) Recourse.
(xliii) Assignment of Collateral.
(xliv) Fee Simple or Leasehold Interests.
(xlv) Borrower Organization.
(xlvi) Servicing and Collection.
(xlvii) Escrows.
(xlviii) UCC Financing Statements.
(xlix) Appraisal.
(l) Legal Compliance - Origination, Funding and Servicing.
(li) Additional Collateral.
o Buttonwood Village (00-0000000) ($2,700,000): $705,900
existing secured subordinate debt owed by Borrower to the U.S.
Small Business Administration (SBA); SBA note and right of SBA
to receive payments is junior and subordinate to lender's note
and rights of holder of lender's note; 2.9% interest rate;
30-year term; SBA Note is cross-defaulted with lender's note
(lii) Advances After Origination.
(liii) Originator Authorization.
(liv) Capital Contributions.
(lv) Appointment of Receiver.
