EXHIBIT 99.2
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 German American Capital
Corporation, as seller (the "Seller" or "GACC"), 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 GACC,
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
General Electric Capital Corporation to the Purchaser pursuant to a mortgage
loan purchase and sale agreement, dated as of the date hereof between General
Electric 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 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 GACC'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 Maryland.
(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 Maryland, 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 German American Capital Corporation, 00 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxx, telecopy number:
212-797-4490 (with copies to Xxxx Xxxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx
LLP, 1 World Financial Center, New York, New York 10281) or to such other
addresses as may hereafter be furnished to the Purchaser by the Seller in
writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller agreed to
be made hereby shall be, and be construed as a sale by the Seller of all of the
Seller's right, title and interest in and to the Mortgage Loans. It is, further,
not intended that such conveyance be deemed a pledge of the Mortgage Loans by
the Seller to the Purchaser to secure a debt or other obligation of the Seller,
as the case may be. However, in the event that notwithstanding the intent of the
parties, the Mortgage Loans are held to be property of the Seller, or if for any
reason this Agreement is held or deemed to create a security interest in the
Mortgage Loans, then it is intended that, (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the New
York Uniform Commercial Code and the Uniform Commercial Code of any other
applicable jurisdiction; and (ii) the conveyance provided for in this Section
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of its right (including the power to convey title thereto),
title and interest, whether now owned or hereafter acquired, in and to (A) the
Mortgage Notes, the Mortgages, any related insurance policies and all other
documents in the related Mortgage Files, (B) all amounts payable to the holders
of the Mortgage Loans in accordance with the terms thereof (other then scheduled
payments of interest and principal due on or before the Cut-off Date) and (C)
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, whether in the form of cash,
instruments, securities or other property. The Seller and the Purchaser shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement. In connection herewith, the Purchaser shall have all of the
rights and remedies of a secured party and creditor under the Uniform Commercial
Code as in force in the relevant jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived or supplemented
except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
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
-------- ----------- ----------- --------------------------------------
2 GA25040 GACC BlueLinx Holdings Portfolio (Rollup)
2.1 GA25040-17 GACC Frederick
2.2 GA25040-4 GACC Bellingham
2.3 XX00000-00 XXXX Xxxxxxxxxx Xxxx
2.4 GA25040-25 GACC Lawrenceville (Corp. HQ)
2.5 GA25040-58 GACC Yulee
2.6 GA25040-36 GACC Newark
2.7 GA25040-6 GACC Butner
2.8 GA25040-18 GACC Ft. Worth
2.9 XX00000-00 XXXX Xx Xxxxxx (Xxxx of Industry)
2.10 GA25040-57 GACC Ypsilanti
2.11 GA25040-34 GACC National City
2.12 GA25040-14 GACC Englewood (OFFICE) - SE Denver
2.13 GA25040-22 GACC Independence
2.14 GA25040-5 GACC Bridgeton
2.15 GA25040-3 GACC Beaverton
2.16 XX00000-00 XXXX X. Xxxxxx City
2.17 GA25040-50 GACC Tampa
2.18 GA25040-10 GACC Denville
2.19 GA25040-55 GACC Woodinville
2.20 GA25040-9 GACC Denver
2.21 GA25040-30 GACC Miami
2.22 GA25040-42 GACC Riverside
2.23 XX00000-00 XXXX Xxxxxxx
2.24 GA25040-15 GACC Xxxxx
2.25 XX00000-00 XXXX Xxxxx Xxxxx
2.26 GA25040-39 GACC Pensacola
2.27 GA25040-13 GACC Elkhart
2.28 GA25040-51 GACC Tulsa
2.29 GA25040-31 GACC Midfield
2.30 GA25040-37 GACC Newtown
2.31 GA25040-33 GACC Nashville
2.32 GA25040-8 GACC Charlotte
2.33 GA25040-2 GACC Allentown
2.34 XX00000-00 XXXX Xxx Xxxxxxx
2.35 GA25040-41 GACC Richmond
2.36 XX00000-00 XXXX Xxx Xxxxxxx
2.37 GA25040-1 GACC Albuquerque
2.38 GA25040-56 GACC Yaphank
2.39 GA25040-40 GACC Portland
2.40 GA25040-29 GACC Memphis
2.41 GA25040-44 GACC Shelburne
2.42 GA25040-16 GACC Fargo
2.43 GA25040-45 GACC Shreveport
2.44 XX00000-00 XXXX Xxxx Xxxx
2.45 GA25040-26 GACC Little Rock
2.46 GA25040-53 GACC Virginia Beach
2.47 GA25040-49 GACC Tallmadge
2.48 XX00000-00 XXXX Xx. Xxxx (Xxxxx)
0.00 XX00000-00 GACC Springfield
2.50 XX00000-00 XXXX Xxxxx Xxxxx
2.51 GA25040-12 GACC El Paso
2.52 GA25040-11 GACC Des Moines
2.53 GA25040-20 GACC Harlingen
2.54 XX00000-00 XXXX Xxxxx Xxxxxx
0.00 XX00000-0 GACC Charleston
2.56 GA25040-54 GACC Wausau
2.57 GA25040-27 GACC Lubbock
2.58 GA25040-38 GACC Pearl
6 DBM27054 GACC Glendale Fashion Center
7 DBM27345 GACC 0000 Xxxxxxxxx Xxxxx Xxxx
11 DBM27427 GACC Empirian Xxxxxx Xxxxxx Xxxxxxxxxx
00 XXX00000 XXXX Xxxxxxx Apartments
13 DBM24832 GACC The Navy League Building
14 DBM27173 GACC Congressional North
17 DBM27058 GACC Boulder Park Apartments
19 DBM27174 GACC Empirian Park Row Apartments
20 DBM26835 GACC Valley Square Office Park
21 DBM27348 GACC 000 Xxxxxxx Xxxxxx
25 DBM27480 GACC The Xxxxxx Building
27 DBM27175 GACC Empirian Inverness Apartments
29 DBM26333 GACC 000 Xxxx Xxxxxx
30 DBM27187 GACC Verandah at Meyerland Apartments
31 DBM27163 GACC The Fairways at South Shore Apartments
34 DBM27008 GACC Holiday Inn Gaithersburg
35 DBM27315 GACC FBI Building New Orleans
36 DBM26941 GACC Xxxx Marketplace
42 DBM26725 GACC Plaza Towers Apartments
46 DBM26774 GACC 000 Xxxx 00xx Xxxxxx
51 DBM27131 GACC Xxxxxxx Forest Green
53 DBM26940 GACC Gratiot Crossing
56 DBM25175 GACC Lincoln Plaza
57 DBM26952 GACC Katella Corporate Center
63 DBM26656 GACC Market Street Center
64 DBM26802 GACC 000 Xxxxxxx Xxxxx Xxxxx
67 DBM26347 GACC Eighth Avenue Properties
69 DBM27188 GACC Commerce Park
70 DBM26210 GACC 19 Xxxxxxxxxx
76 DBM27297 GACC 0000 Xxxxx Xxxx Xxxxxxxxx
77 DBM26334 GACC South Seattle Business Park
78 DBM27048 GACC 0000-0000 Xxxxx Xxxxxx
80 DBM27191 GACC Raisin Ridge
85 DBM26745 GACC Harbour Pointe Center
89 DBM27193 GACC Xxxxxxxxx Xxxxx
00 DBM26767 GACC The Carolina Apartments
108 DBM27073 GACC Vista Gardens Apartments
109 DBM27166 GACC Capri
113 DBM27072 GACC Xxxxxxxxxx Xxxxx Xxxxxxxxxx
000 XXX00000 XXXX 000 Xxxx 00xx Xxxxxx Apartments
124 DBM26635 GACC Whitwood Plaza
125 DBM26871 GACC Prudential Fox & Xxxxx
126 DBM26930 GACC Polifly Plaza
127 DBM27557 GACC 00 Xxxxx Xxxxxxxxxx Xxxxxxx
133 DBM27115 GACC La Xxxxxx Pavillion
138 DBM27266 GACC Vista Village Center
139 DBM26921 GACC 0000-0000 Xxxxxxxx Xxxxxx
142 DBM26275 GACC Airway Plaza
155 DBM27125 GACC Hampton Inn Darien
159 DBM26886 GACC Xxxxxxx Commons
Totals
Sequence Street Address City State Zip Code
-------- ------------------------------------------------------ --------------------- ------- --------
2 Various Various Various Various
2.1 0000 Xxxxxxx-Xxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
2.2 000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
2.3 0000 Xxxxxx Xxxx Xxxxxxxxxx Xxxx XX 00000
2.4 000 Xxxxx Xxxx Xxxxxxxxxxxxx XX 00000
2.5 00000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxx XX 00000
2.6 00000 Xxxxxx Xxxxxx Xxxxxx XX 00000
2.7 0000 X Xxxxxx Xxxxxx XX 00000
2.8 0000 Xxxx XX Xxxxxxx Xx. Xxxxx XX 00000
2.9 00000 Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
2.10 0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000
2.11 000 Xxx Xxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
2.12 000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxxx XX 00000
2.13 00000 Xxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
2.14 00000 Xxxx Xxxxx Xxxxx Xxxxxxxxx XX 00000
2.15 00000 XX Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000
2.16 0000 Xxxxxx Xxxxxx Xxxxxx Xxxx XX 00000
2.17 000 Xxxxx 00xx Xxxxxx Xxxxx XX 00000
2.18 0 Xxxxx Xxxx Xxxxxxxx XX 00000
2.19 00000 Xxxxxxxxx 000xx Xxxxxx Xxxxxxxxxxxx XX 00000
2.20 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000
2.21 0000 Xxxxxxxxx 000xx Xxxxxx Xxxxx XX 00000
2.22 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
2.23 000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
2.24 0000 X Xxxxxxxxxx Xxxxxxxxx Xxxxx XX 00000
2.25 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxx XX 00000
2.26 0000 Xxxxx Xxxxx Xxxxxxxxx XX 00000
2.27 000 Xxxxxxx Xxxx Xxxxxxx XX 00000
2.28 0000 Xxxxx Xxxxx Xxxx Xxxxx XX 00000
2.29 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
2.30 00 Xxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
2.31 000 00xx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
2.32 0000 Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000
2.33 0000 Xxxxxxxxx Xxxx Xxxxx Xxxxxxxxx XX 00000
2.34 000 X XX Xxxxx Xxxx Xxx Xxxxxxx XX 00000
2.35 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
2.36 Old Xx. 000 xxx Xxxxxx Xxxx Xxx Xxxxxxx XX 00000
2.37 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
2.38 000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
2.39 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000
2.40 0000 Xxxxx Xxxxx Xxxxxxx XX 00000
2.41 000 Xxxx Xxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000
2.42 0000 00xx Xxxxxx, Xxxxx Xxxxx XX 00000
2.43 0000 Xxxxxx Xxxx Xxxxx Xxxxxxxxxx XX 00000
2.44 000 XX Xxxxxx 000 Xxxx Xxxx XX 00000
2.45 0000 Xxxxx Xxxxxx Xxxxxx Xxxx XX 00000
2.46 000 Xxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
2.47 000 Xxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000
2.48 0000 Xxxx Xxxxxxx Xxxx Xxxx XX 00000
2.49 0000 X. Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
2.50 0000 X 0xx Xxxxxx Xxxxx Xxxxx XX 00000
2.51 0000 Xxxxxx Xxxxxx Xx Xxxx XX 00000
2.52 0000 XX 00xx Xxx Xxxxxx XX 00000
2.53 0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000
2.54 000 Xxxxxxxx Xxx XX Xxxxx Xxxxxx XX 00000
2.55 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
2.56 000 Xxxxx 00xx Xxxxxx Xxxxxx XX 00000
2.57 000 Xxxx 00xx Xxxxxx Xxxxxxx XX 00000
2.58 000 Xxxx Xxxx Xxxx, Xxxxx Xxxxx XX 00000
6 000-000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
7 0000 Xxxxxxxxx Xxxxx Xxxx XxXxxx XX 00000
11 000 Xxxx Xxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
12 0000 Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
13 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
14 0000 Xxxxxxxxx Xxxx & 000 Xxxxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
17 00 Xxxxxxx Xxxx Xxxxx Xxxxxx XX 00000
19 00000 Xxxx Xxx Xxxxxxx XX 00000
20 000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxx Xxxx XX 00000
21 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000
25 00-00 Xxxxx 00xx Xxxxxx Xxxxxxxxxxxx XX 00000
27 0000 Xxx Xxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
29 000 Xxxx Xxxxxx Xxxxxxxx XX 00000
30 0000 Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000
31 0000 Xxxxxx Xxx Xxxxx Xxxxxx Xxxx XX 00000
34 0 Xxxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
35 0000 Xxxx X. Xxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000
36 000-000 Xxxx Xxx Xxxxxx Xxxx Xxxx XX 00000
42 0000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
46 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
51 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000
53 00000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx Xxxxxxxx XX 00000
56 2501 & 0000 Xxxxx 00xx Xxxxxx & 0000 Xxxxx Xxxx Xxxxxx Xxxxxx XX 00000
57 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxxx XX 00000
63 0000 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
64 000 Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxxx XX 00000
00 000-000 & 000-000 Xxxxxx Xxxxxx Xxx Xxxx XX 00000
69 000 Xxxxxxxxxx Xxxxx & 00000 Xxxxx Xxxxxxx Xxxxxxx XX 00000
70 00 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
76 0000 Xxxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000
77 0000-0000 Xxxx Xxxxxxxx Xxx Xxxxxxx XX 00000
78 0000-0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000
80 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxxx XX 00000
85 16361-16389/16431/16471-16479 Bolsa Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
89 1311- 0000 Xxxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
93 0000-0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
108 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX 00000
109 00000 Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000
113 0000 Xxx Xxx Xxxx Xxxxxx Xxxxxxx XX 00000
120 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
124 0000 Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000
125 000 Xxxxxxxxx Xxxxxx Xxxxx XX 00000
126 000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
127 00 Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000
133 00000 Xxxx Xxxx Xx Xxxxxx XX 00000
138 00000/00/00 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
139 0000-0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
142 000-000 Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
155 000 Xxxxxxx 000 Xxxxxx XX 00000
159 0000 Xxxxx Xxxx (NC Xxxxxxx 00) Xxxx Xxxx XX 00000
Sequence Mortgage Rate (1) Amortization Basis (2) Original Balance Cut-off Date Balance
-------- ----------------- ---------------------- ---------------- --------------------
2 6.350% Actual/360 $147,500,000 $147,500,000
2.1 $14,768,077 $14,768,077
2.2 $10,872,000 $10,872,000
2.3 $7,968,000 $7,968,000
2.4 $7,865,935 $7,865,935
2.5 $6,720,000 $6,720,000
2.6 $5,135,000 $5,135,000
2.7 $5,115,250 $5,115,250
2.8 $4,592,284 $4,592,284
2.9 $4,120,812 $4,120,812
2.10 $3,995,089 $3,995,089
2.11 $3,762,164 $3,762,164
2.12 $3,360,000 $3,360,000
2.13 $3,280,000 $3,280,000
2.14 $3,244,698 $3,244,698
2.15 $2,900,000 $2,900,000
2.16 $2,852,000 $2,852,000
2.17 $2,720,000 $2,720,000
2.18 $2,400,000 $2,400,000
2.19 $2,271,250 $2,271,250
2.20 $2,222,913 $2,222,913
2.21 $2,172,500 $2,172,500
2.22 $2,058,071 $2,058,071
2.23 $2,020,950 $2,020,950
2.24 $1,860,000 $1,860,000
2.25 $1,800,000 $1,800,000
2.26 $1,745,062 $1,745,062
2.27 $1,730,200 $1,730,200
2.28 $1,552,000 $1,552,000
2.29 $1,540,000 $1,540,000
2.30 $1,520,000 $1,520,000
2.31 $1,498,123 $1,498,123
2.32 $1,475,256 $1,475,256
2.33 $1,450,000 $1,450,000
2.34 $1,392,000 $1,392,000
2.35 $1,322,396 $1,322,396
2.36 $1,320,000 $1,320,000
2.37 $1,303,500 $1,303,500
2.38 $1,280,000 $1,280,000
2.39 $1,212,000 $1,212,000
2.40 $1,191,719 $1,191,719
2.41 $1,180,800 $1,180,800
2.42 $1,140,000 $1,140,000
2.43 $1,125,900 $1,125,900
2.44 $1,120,000 $1,120,000
2.45 $1,088,000 $1,088,000
2.46 $1,064,000 $1,064,000
2.47 $1,030,000 $1,030,000
2.48 $972,000 $972,000
2.49 $930,700 $930,700
2.50 $860,000 $860,000
2.51 $765,450 $765,450
2.52 $762,350 $762,350
2.53 $741,150 $741,150
2.54 $680,400 $680,400
2.55 $680,000 $680,000
2.56 $656,000 $656,000
2.57 $620,000 $620,000
2.58 $474,000 $474,000
6 6.173% Actual/360 $72,000,000 $72,000,000
7 6.220% Actual/360 $64,000,000 $64,000,000
11 6.472% Actual/360 $50,000,000 $50,000,000
12 6.062% Actual/360 $50,000,000 $50,000,000
13 5.595% Actual/360 $47,300,000 $47,065,564
14 6.331% Actual/360 $47,000,000 $47,000,000
17 6.410% Actual/360 $44,000,000 $44,000,000
19 6.577% Actual/360 $38,600,000 $38,600,000
20 6.300% Actual/360 $37,500,000 $37,500,000
21 6.170% Actual/360 $32,700,000 $32,700,000
25 6.264% Actual/360 $28,320,000 $28,320,000
27 6.423% Actual/360 $25,000,000 $25,000,000
29 6.595% Actual/360 $25,000,000 $25,000,000
30 6.165% Actual/360 $24,000,000 $24,000,000
31 6.310% Actual/360 $22,824,000 $22,824,000
34 6.258% Actual/360 $22,200,000 $22,200,000
35 6.080% Actual/360 $22,000,000 $22,000,000
36 5.904% Actual/360 $21,900,000 $21,900,000
42 6.192% Actual/360 $18,000,000 $18,000,000
46 6.325% Actual/360 $16,925,000 $16,925,000
51 6.475% Actual/360 $14,220,000 $14,220,000
53 5.904% Actual/360 $13,500,000 $13,500,000
56 5.443% Actual/360 $12,500,000 $12,500,000
57 6.346% Actual/360 $12,250,000 $12,250,000
63 6.028% Actual/360 $10,100,000 $10,100,000
64 5.927% Actual/360 $10,000,000 $10,000,000
67 6.130% Actual/360 $9,500,000 $9,500,000
69 6.140% Actual/360 $9,400,000 $9,400,000
70 6.430% Actual/360 $9,200,000 $9,200,000
76 6.195% Actual/360 $8,200,000 $8,200,000
77 5.510% Actual/360 $8,000,000 $8,000,000
78 6.285% Actual/360 $7,800,000 $7,800,000
80 6.275% Actual/360 $7,740,000 $7,740,000
85 6.160% Actual/360 $7,400,000 $7,400,000
89 6.060% Actual/360 $7,080,000 $7,080,000
93 5.771% Actual/360 $6,590,000 $6,590,000
108 5.987% Actual/360 $5,750,000 $5,750,000
109 6.100% Actual/360 $5,700,000 $5,700,000
113 5.987% Actual/360 $5,500,000 $5,500,000
120 5.800% Actual/360 $5,200,000 $5,200,000
124 6.390% Actual/360 $4,750,000 $4,750,000
125 6.259% Actual/360 $4,700,000 $4,700,000
126 6.520% Actual/360 $4,600,000 $4,596,691
127 6.210% Actual/360 $4,500,000 $4,500,000
133 6.210% Actual/360 $4,150,000 $4,150,000
138 6.243% Actual/360 $4,000,000 $4,000,000
139 5.920% Actual/360 $4,000,000 $3,992,550
142 6.263% Actual/360 $3,820,000 $3,820,000
155 6.550% Actual/360 $2,730,000 $2,730,000
159 6.195% Actual/360 $2,520,000 $2,520,000
$1,071,923,805
Sequence Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment
-------- ------------------------------------------ -------------------- -------- ---------------
2 119 7/1/2016 1st $917,798
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
2.30
2.31
2.32
2.33
2.34
2.35
2.36
2.37
2.38
2.39
2.40
2.41
2.42
2.43
2.44
2.45
2.46
2.47
2.48
2.49
2.50
2.51
2.52
2.53
2.54
2.55
2.56
2.57
2.58
6 119 7/1/2016 1st $375,524
7 119 7/1/2016 1st $392,811
11 120 8/1/2016 1st $315,114
12 121 9/1/2016 1st $301,771
13 115 3/1/2016 1st $271,390
14 119 7/1/2016 1st $291,852
17 118 6/1/2016 1st $275,511
19 119 7/1/2016 1st $245,936
20 117 5/1/2016 1st $232,115
21 120 8/1/2016 1st $199,641
25 83 7/1/2013 1st $149,884
27 120 8/1/2016 1st $156,753
29 61 9/1/2011 1st $159,582
30 61 9/1/2011 1st $125,013
31 60 8/1/2011 1st $121,683
34 142 6/1/2018 1st $136,805
35 60 8/1/2011 1st $113,015
36 118 6/1/2016 1st $129,953
42 118 6/1/2016 1st $110,151
46 118 6/1/2016 1st $105,037
51 120 8/1/2016 1st $89,646
53 118 6/1/2016 1st $80,108
56 117 5/1/2016 1st $70,527
57 82 6/1/2013 1st $76,192
63 118 6/1/2016 1st $51,440
64 117 5/1/2016 1st $59,487
67 118 6/1/2016 1st $57,754
69 120 8/1/2016 1st $57,207
70 57 5/1/2011 1st $57,727
76 84 8/1/2013 1st $50,196
77 116 4/1/2016 1st $45,473
78 120 8/1/2016 1st $48,204
80 120 8/1/2016 1st $47,782
85 119 7/1/2016 1st $45,131
89 120 8/1/2016 1st $42,722
93 116 4/1/2016 1st $38,545
108 120 8/1/2016 1st $34,426
109 120 8/1/2016 1st $34,542
113 120 8/1/2016 1st $32,929
120 118 6/1/2016 1st $25,482
124 119 7/1/2016 1st $29,680
125 120 8/1/2016 1st $28,966
126 119 7/1/2016 1st $29,136
127 120 8/1/2016 1st $27,590
133 120 8/1/2016 1st $25,444
138 121 9/1/2016 1st $45,079
139 118 6/1/2016 1st $23,777
142 118 6/1/2016 1st $23,553
155 120 8/1/2016 1st $18,519
159 118 6/1/2016 1st $15,426
Sequence Administrative Fee Rate (3) Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest
-------- --------------------------- -------------------------- ------------------------- ------------------
2 0.018% 0.008% 0.018% Fee
2.1 Fee
2.2 Fee
2.3 Fee
2.4 Fee
2.5 Fee
2.6 Fee
2.7 Fee
2.8 Fee
2.9 Fee
2.10 Fee
2.11 Fee
2.12 Fee
2.13 Fee
2.14 Fee
2.15 Fee
2.16 Fee
2.17 Fee
2.18 Fee
2.19 Fee
2.20 Fee
2.21 Fee
2.22 Fee
2.23 Fee
2.24 Fee
2.25 Fee
2.26 Fee
2.27 Fee
2.28 Fee
2.29 Fee
2.30 Fee
2.31 Fee
2.32 Fee
2.33 Fee
2.34 Fee
2.35 Fee
2.36 Fee
2.37 Fee
2.38 Fee
2.39 Fee
2.40 Fee
2.41 Fee
2.42 Fee
2.43 Fee
2.44 Fee
2.45 Fee
2.46 Fee
2.47 Fee
2.48 Fee
2.49 Fee
2.50 Fee
2.51 Fee
2.52 Fee
2.53 Fee
2.54 Fee
2.55 Fee
2.56 Fee
2.57 Fee
2.58 Fee
6 0.041% 0.030% 0.040% Fee/Leasehold
7 0.041% 0.030% 0.040% Fee
11 0.041% 0.030% 0.040% Fee
12 0.041% 0.030% 0.040% Fee
13 0.041% 0.030% 0.040% Fee
14 0.041% 0.030% 0.040% Fee
17 0.041% 0.030% 0.040% Fee
19 0.041% 0.030% 0.040% Fee
20 0.041% 0.030% 0.040% Fee
21 0.041% 0.030% 0.040% Fee
25 0.041% 0.030% 0.040% Fee
27 0.041% 0.030% 0.040% Fee
29 0.041% 0.030% 0.040% Fee/Leasehold
30 0.041% 0.030% 0.040% Fee
31 0.041% 0.030% 0.040% Fee
34 0.041% 0.030% 0.040% Fee
35 0.041% 0.030% 0.040% Fee
36 0.041% 0.030% 0.040% Fee
42 0.041% 0.030% 0.040% Fee
46 0.041% 0.030% 0.040% Fee
51 0.041% 0.030% 0.040% Fee
53 0.041% 0.030% 0.040% Fee
56 0.061% 0.050% 0.060% Fee
57 0.041% 0.030% 0.040% Fee
63 0.041% 0.030% 0.040% Fee
64 0.041% 0.030% 0.040% Fee
67 0.041% 0.030% 0.040% Fee
69 0.041% 0.030% 0.040% Fee
70 0.041% 0.030% 0.040% Fee
76 0.041% 0.030% 0.040% Fee
77 0.041% 0.030% 0.040% Fee
78 0.041% 0.030% 0.040% Fee
80 0.041% 0.030% 0.040% Fee
85 0.061% 0.050% 0.060% Fee
89 0.041% 0.030% 0.040% Fee
93 0.041% 0.030% 0.040% Fee
108 0.041% 0.030% 0.040% Fee
109 0.041% 0.030% 0.040% Fee
113 0.041% 0.030% 0.040% Fee
120 0.041% 0.030% 0.040% Fee
124 0.101% 0.090% 0.100% Fee
125 0.041% 0.030% 0.040% Fee
126 0.041% 0.030% 0.040% Fee
127 0.041% 0.030% 0.040% Fee
133 0.041% 0.030% 0.040% Fee
138 0.041% 0.030% 0.040% Fee
139 0.041% 0.030% 0.040% Fee
142 0.041% 0.030% 0.040% Fee
155 0.041% 0.030% 0.040% Fee
159 0.041% 0.030% 0.040% Fee
Sequence Cross-Collateralized Loans Original Amortization (months) ARD Loan Grace Period Loan Group
-------- -------------------------- ------------------------------ -------- ------------ ----------
2 No 360 No 5 1
2.1 1
2.2 1
2.3 1
2.4 1
2.5 1
2.6 1
2.7 1
2.8 1
2.9 1
2.10 1
2.11 1
2.12 1
2.13 1
2.14 1
2.15 1
2.16 1
2.17 1
2.18 1
2.19 1
2.20 1
2.21 1
2.22 1
2.23 1
2.24 1
2.25 1
2.26 1
2.27 1
2.28 1
2.29 1
2.30 1
2.31 1
2.32 1
2.33 1
2.34 1
2.35 1
2.36 1
2.37 1
2.38 1
2.39 1
2.40 1
2.41 1
2.42 1
2.43 1
2.44 1
2.45 1
2.46 1
2.47 1
2.48 1
2.49 1
2.50 1
2.51 1
2.52 1
2.53 1
2.54 1
2.55 1
2.56 1
2.57 1
2.58 1
6 No 0 Xx 0 0
0 Xx 000 Xx 5 1
11 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 2
29 No 360 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 1
35 No 0 Xx 0 0
00 Xx 000 Xx 5 1
42 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 0 Xx 0 0
00 Xx 000 Xx 5 1
67 No 360 No 5 1
69 No 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 Xx 0 0
00 Xx 000 Xx 0 0
00 Xx 360 No 5 1
89 No 360 Xx 0 0
00 Xx 000 Xx 0 0
000 Xx 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 360 Xx 0 0
000 Xx 0 Xx 0 0
000 Xx 360 No 5 1
125 No 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 360 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 120 Xx 0 0
000 Xx 000 Xx 0 0
000 Xx 360 Xx 0 0
000 Xx 000 Xx 5 1
159 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
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Schedule IIA to the
Mortgage Loan Purchase Agreement for GACC.
Note: The Mortgage Loans known as Bluelinx Holdings Portfolio (with
respect to the Mortgaged Property located in Maryland), Congressional North,
Holiday Inn Gaithersburg, Xxxxxxx Forest Green and Strathmore House Apartments,
identified on Annex A-1 by Sequence # 2, 15, 35, 52 and 114, has an Indemnity
Deed of Trust ("IDOT") structure. The related borrower under such Mortgage Loan
executed and delivered the related note to the lender and is obligated to make
payments thereunder. The related property owner for each such Mortgage Loan
executed an Indemnity Deed of Trust and Security Agreement in favor of the
lender, guaranteeing all amounts payable by the borrower under the related note.
With respect to certain of the representations and warranties, with respect to
these Mortgage Loans, statements regarding the borrower relate to the property
owner of the related Mortgaged Property.
Annex A
Sequence # Mortgage Loan Exception
Exceptions to Representation 2: Ownership of Mortgage Loans.
2 Bluelinx Holdings Portfolio The Mortgage also secures a pari
(Rollup) passu loan in the amount of
$147,500,000 that is not an asset
of the trust fund
Exceptions to Representation 4: Lien Valid Assignment.
2 Bluelinx Holdings Portfolio The Mortgage also secures a pari
(Rollup) passu loan in the amount of
$147,500,000 that is not an asset
of the trust fund. The Mortgage
Loan documents permit, without
lender consent, the borrower to
grant easements, covenants,
restrictions and rights of way in
the ordinary course of business for
access, utilities or other similar
purposes, provided it will not
impair the use of the Mortgaged
Property or have a material adverse
effect on the Mortgaged Property,
taken as a whole.
134 La Xxxxxx Pavillion The recorded lease with Verizon
Wireless (one of the tenants)
contains a right of first refusal
and a right of subrogation. The
Mortgage Loan is recourse for any
loss related to these rights and
the title policy insured that the
Verizon lease is subordinate to the
lien of the Mortgage.
Exceptions to Representation 6: Mortgage Status; Waivers and
Modifications.
2 Bluelinx Holdings Portfolio With respect to the Mortgaged
(Rollup) Properties located in Tennessee and
Florida, the related Mortgage is
being amended to reflect the
existence of two promissory notes.
With respect to the Mortgaged
Property located in South Dakota,
the related Mortgage and Assignment
of Master Lease, Leases, Rents and
Security Deposits are being amended
to correct a discrepancy in the
legal description.
Exceptions to Representation 14: Insurance.
Various Various Certain of the Mortgage Loan
documents may limit terrorism
insurance coverage with maximum
required premium amounts or
percentages.
Exceptions to Representation 16: Borrower Bankruptcy.
All All The Seller makes no representation
regarding the bankruptcy or
insolvency of any tenant at the
Mortgaged Property.
Exceptions to Representation 17: Local Law Compliance.
13 Tuscany Apartments The borrower is not in receipt of
the Certificate of Occupancy
("CO"). However, the non-recourse
carve-out guarantor has indemnified
the lender for any loss related to
the lack of CO.
00 Xxxxxxx Xxxx Apartments The Borrower rents storage units to
non-residents and has an obligation
to use its best efforts to obtain a
variance or other zoning relief to
permit leasing of storage units to
non-residents. However, rents from
these storage units are not
significant.
22 000 Xxxxxxx Xxxxxx The Mortgaged Property has building
code and other violations. However,
the non-recourse carve-out
guarantor has agreed to indemnify
the lender for any loss related to
these violations.
35 Holiday Inn Gaithersburg The IDOT guarantor does not have a
valid liquor license. However, the
application has been filed and the
hearing is scheduled for September,
2006.
79 0000-0000 Xxxxx Xxxxxx The borrower is not receipt of a
final CO. The borrower reserved
$100,000, which amount will be
returned to the borrower upon
delivery of evidence that the
borrower is in receipt of a final
CO. In the event such evidence is
delivered more than one year after
the loan origination date, such
amount will continue to be held as
additional collateral.
000 Xxxxxxxx Xxxxx The borrower is not in receipt of
the CO for the space occupied by
Fuse Mobile. However, the
non-recourse carve-out guarantor
has indemnified the lender for any
loss related to the lack of CO.
128 30 North Macquesten The Mortgaged Property has building
Parkway code violations. However, the
non-recourse carve-out guarantor
has agreed to indemnify the lender
for any loss related to these
violations.
000 Xxxxxx Xxxxx The borrower is not in receipt of
the CO for one of the tenants.
However, the non-recourse carve-out
guarantor has indemnified the
lender for any loss related to the
lack of CO.
134 La Xxxxxx Pavillion There is a possible Subdivision Map
Act (the "Act") violation. However,
the city of La Xxxxxx issued a
letter stating that it does not
believe there is a violation of the
Act and the title company
affirmatively insured that there is
no violation of the Act. The
Mortgage Loan is recourse for any
loss related to a violation of the
Act. In addition, the borrower
could not locate a CO and the
zoning consultant advised the
Seller that the city does not
provide copies of COs.
Exceptions to Representation 18g: Leasehold Estate.
30 000 Xxxx Xxxxxx The ground lease with respect to
the basement space extends only 10
years beyond the Mortgage Loan
maturity date.
Exceptions to Representation 22: Legal Proceedings.
14 The Navy League Building There is a litigation claim in the
amount of $2,600,000 pending
against the borrower related to
construction of the Mortgaged
Property. The lender is holding a
$2,000,000 letter of credit, which
letter of credit may be returned to
the borrower upon satisfactory
dismissal of the claim or used
towards payment of the plaintiff if
judgment is in favor of plaintiff.
In addition, the non-recourse
carve-out guarantor indemnified the
lender for any losses related to
the litigation and for any loss
over $2,000,000.
Exceptions to Representation 23: Other Mortgage Liens.
2 Bluelinx Holdings Portfolio The Mortgage also secures a pari
(Rollup) passu loan in the amount of
$147,500,000 that is not an asset
of the trust fund
14 The Navy League Building The Borrower obtained a subordinate
loan in the amount of $7,000,000
from The Associated General
Contractors of America, which loan
is secured by a second mortgage on
the Mortgaged Property. The
subordinate lender executed a
subordination and standstill
agreement with the lender
121 000 Xxxx 00xx Xxxxxx The Borrower obtained a subordinate
Apartments $1,000,000 line of credit secured
by the Mortgaged Property and
recourse to the Borrower from an
affiliate of GACC to be used for
additional working capital
purposes.
Exception to Representation 25: Releases of Mortgaged Property.
2 Bluelinx Holdings Portfolio The Mortgage Loan documents permit
(Rollup) the borrower to either defease all
or a portion of the Mortgage Loan
or to prepay with yield
maintenance, all or a portion of
the Mortgage Loan, in each case,
subject to the requirements
specified in the Mortgage Loan
documents.
30 000 Xxxx Xxxxxx The Mortgage Loan documents permit
the borrower to obtain a release of
the 10th and 11th floors at the
Mortgaged Property (either through
partial defeasance or partial
prepayment) in the event the State
of Connecticut exercises its option
to purchase these floors, in each
case, subject to the requirements
specified in the Mortgage Loan
documents.
Exception to Representation 26: Licenses and Permits.
13 Tuscany Apartments The borrower is not in receipt of
the Certificate of Occupancy
("CO"). However, the non-recourse
carve-out guarantor has indemnified
the lender for any loss related to
the lack of CO.
00 Xxxxxxx Xxxx Apartments The Borrower rents storage units to
non-residents and has an obligation
to use its best efforts to obtain a
variance or other zoning relief to
permit leasing of storage units to
non-residents. However, rents from
these storage units are not
significant.
35 Holiday Inn Gaithersburg The IDOT guarantor does not have a
valid liquor license. However, the
application has been filed and the
hearing is scheduled for September,
2006.
79 0000-0000 Xxxxx Xxxxxx The borrower is not receipt of a
final CO. The borrower reserved
$100,000, which amount will be
returned to the borrower upon
delivery of evidence that the
borrower is in receipt of a final
CO. In the event such evidence is
delivered more than one year after
the loan origination date, such
amount will continue to be held as
additional collateral.
000 Xxxxxxxx Xxxxx The borrower is not in receipt of
the Certificate of Occupancy ("CO")
for the space occupied by Fuse
Mobile. However, the non-recourse
carve-out guarantor has indemnified
the lender for any loss related to
the lack of CO.
000 Xxxxxx Xxxxx The borrower is not in receipt of
the CO for one of the tenants.
However, the non-recourse carve-out
guarantor has indemnified the
lender for any loss related to the
lack of CO.
Exception to Representation 27: Cross-Collateralization.
2 Bluelinx Holdings Portfolio The Mortgage also secures a pari
(Rollup) passu loan in the amount of
$147,500,000 that is not an asset
of the trust fund
Exceptions to Representation 34: Due on Sale.
Various Certain of the Mortgage Loan
documents also permit, without
lender consent, some or all of the
following: (i) assumption of the
Mortgage Loan upon payment of an
assumption fee (in most cases) and
satisfaction of certain conditions,
(ii) the transfer of a controlling
interest in the borrower to certain
pre-approved entities or to any
entity meeting the "qualified
transferee" (or similar) definition
under the loan documents or to any
entity satisfying certain other
criteria (or subject to conditions)
specified in the loan documents,
(iii) the transfer of a controlling
interest in the borrower for
purposes of family and estate
planning, (iv) the transfer of a
controlling interest by devise,
descent or operation of law upon
the death or incapacity of a
member, general partner or
shareholder of the related
borrower, (v) the issuance of
non-controlling new equity
interests, (vi) transfers among
existing members, partners or
shareholders in the borrower or an
affiliate of the borrower resulting
in a change of control, (vii)
transfers among affiliated
borrowers with respect to
cross-collateralized and
cross-defaulted Mortgage Loans or
multi-property Mortgage Loans,
(viii) transfers to accomplish 1031
or reverse 1031 exchange, or (ix)
transfers of a similar nature to
the foregoing meeting the
requirements of the Mortgage Loan.
Exceptions to Representation 36: Whole Loan.
2 Bluelinx Holdings Portfolio The Mortgage also secures a pari
(Rollup) passu loan in the amount of
$147,500,000 that is not an asset
of the trust fund
Exception to Representation 41: Servicing Rights.
2 Bluelinx Holdings Portfolio The master servicer and the special
(Rollup) servicer under the securitization
in which the pari passu note is an
asset (Wachovia Bank Commercial
Trust, Commercial Mortgage
Pass-Through Certificates, Series
2006-C27) is the master servicer
and special servicer with respect
to the servicing of this Mortgage
Loan.
00 Xxxxxxx Xxxxx GMAC will continue to be the
primary servicer for this Mortgage
Loan after the Closing Date
pursuant to an agreement between
GMAC and the Master Servicer;
however, the Master Servicer under
the Pooling Agreement will be the
master servicer for this Mortgage
Loan.
00 Xxxxxxx Xxxxxx Xxxxxx Xxxxxxx will continue to be a
non-cashiering primary servicer for
this Mortgage Loan after the
Closing Date pursuant to an
agreement between Newmark and the
Master Servicer; however the Master
Servicer under the Pooling
Agreement will be the master
servicer for this Mortgage Loan.
000 Xxxxxxxx Xxxxx Xxxxxxx will continue to be a
non-cashiering primary servicer for
this Mortgage Loan after the
Closing Date pursuant to an
agreement between Newmark and the
Master Servicer; however the Master
Servicer under the Pooling
Agreement will be the master
servicer for this Mortgage Loan.
Exceptions to Representation 42: Recourse.
2 Bluelinx Holdings Portfolio The borrowers obtained an
(Rollup) environmental insurance policy
covering all of the Mortgaged
Properties. The recourse does not
extend to this Mortgaged Property
to the extent any loss is insured
against by the environmental
insurance policy.
26 The Xxxxxx Building Only the borrower has recourse
obligations in connection with the
carve-outs listed.
121 000 Xxxx 00xx Xxxxxx Only the borrower has recourse
Apartments obligations in connection with the
carve-outs listed.
Exceptions to Representation 43: Assignment of Collateral.
2 Bluelinx Holdings Portfolio Lender does not have a lien on any
(Rollup) personal property of the master
lessee (Bluelinx Corporation) or
any other tenant under leases.
Under the Mortgage Loan documents,
personal property does not include
items that constitute fixtures.
Exceptions to Representation 51: Additional Collateral.
14 The Navy League Building The Borrower obtained a subordinate
loan in the amount of $7,000,000
from The Associated General
Contractors of America, which loan
is secured by a second mortgage on
the Mortgaged Property. The
subordinate lender executed a
subordination and standstill
agreement with the lender
121 000 Xxxx 00xx Xxxxxx The Borrower obtained a subordinate
Apartments $1,000,000 line of credit secured
by the Mortgaged Property and
recourse to the Borrower from an
affiliate of GACC to be used for
additional working capital
purposes.
