EXHIBIT 99.6
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is
dated and effective as of October 1, 2006, between Citigroup Global Markets
Realty Corp., as seller (the "Seller" or "Citigroup"), 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 Seller's 50% pari passu interest in that certain
Mortgage Loan co-originated by Barclays Capital Real Estate Inc. ("BCRE") and
Citigroup Global Markets Realty Corp. (the "Pamida Portfolio Mortgage Loan" or
the "Mortgage Loan") identified on the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of: (i) the
Mortgage Loan; (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; (iii) certain mortgage loans (including a 50%
pari passu interest in the Pamida Portfolio Mortgage Loan) transferred by BCRE
to the Purchaser pursuant to a mortgage loan purchase and sale agreement, dated
as of the date hereof between BCRE and the Purchaser; (iv) certain mortgage
loans transferred by Bear Xxxxxxx Commercial Mortgage, Inc. to the Purchaser
pursuant to a mortgage loan purchase and sale agreement, dated as of the date
hereof between Bear Xxxxxxx Commercial Mortgage, Inc. and the Purchaser; and (v)
certain mortgage loans transferred by SunTrust Bank to the Purchaser pursuant to
a mortgage loan purchase and sale agreement, dated as of the date hereof between
SunTrust Bank and the Purchaser, to a trust (the "Trust") created pursuant to
the Pooling and Servicing Agreement (as defined below). Beneficial ownership of
the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of commercial mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. and/or
Xxxxx'x Investors Service, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Offered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of October 1, 2006 (the "Pooling and
Servicing Agreement"), among BACM, as depositor, Bank of America, National
Association, as master servicer (the "Master Servicer"), Midland Loan Services,
Inc., as special servicer (the "Special Servicer"), and LaSalle Bank National
Association, as trustee (in such capacity, the "Trustee") and as REMIC
administrator. Capitalized terms used but not otherwise defined herein have the
respective meanings assigned to them in the Pooling and Servicing Agreement.
BACM intends to sell the Offered Certificates to Banc of America
Securities LLC ("BAS"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), Barclays
Capital Inc. ("Barclays Capital"), SunTrust Capital Markets, Inc. ("SunTrust
Xxxxxxxx Xxxxxxxx"), Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") and
Greenwich Capital Markets, Inc. ("RBS Greenwich Capital" and, collectively with
BAS, Bear Xxxxxxx, Barclays Capital, SunTrust Xxxxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxx, the "Underwriters") pursuant to an underwriting agreement, dated as of
September 28, 2006 (the "Underwriting Agreement"). BACM intends to sell the
remaining Classes of Certificates (the "Non-Offered Certificates") to BAS, Bear
Xxxxxxx and Barclays Capital, as initial purchasers (collectively, the "Initial
Purchasers"), pursuant to a certificate purchase agreement, dated as of
September 28, 2006 (the "Certificate Purchase Agreement"), among BACM, BAS, Bear
Xxxxxxx and Barclays Capital. The Offered Certificates are more fully described
in the prospectus dated September 28, 2006 (the "Basic Prospectus"), and the
supplement to the Basic Prospectus dated September 28, 2006 (the "Prospectus
Supplement"; and, together with the Basic Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The privately offered
Non-Offered Certificates are more fully described in a private placement
memorandum, dated September 28, 2006 (the "Memorandum"), as it may be amended or
supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial Purchasers
and certain related parties with respect to certain disclosure regarding the
Mortgage Loan and contained in the Prospectus, the Memorandum and certain other
disclosure documents and offering materials relating to the Certificates,
pursuant to an indemnification agreement, dated as of September 28, 2006 (the
"Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters
and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loan. The closing for the purchase and sale of the Mortgage Loan shall
take place on the Closing Date. The purchase price for the Mortgage Loan shall
be an amount agreed upon by the parties in a separate writing, which amount
includes interest accrued on the Mortgage Loan after the Cut-off Date and takes
into account credits, sales concessions, any related Interest Deposit Amount and
such other adjustments as agreed to between the parties in a separate writing
which amount shall be payable on or about October 12, 2006 in immediately
available funds. The Purchaser shall be entitled to all interest accrued on the
Mortgage Loan on and after the Cut-off Date and all principal payments received
on the Mortgage Loan after the Cut-off Date except for principal and interest
payments due and payable on the Mortgage Loan on or before the Cut-off Date,
which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loan.
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(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loan (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loan after the Cut-off Date, together with Citigroup's right, title and
interest in and to any related insurance policies and all other documents in the
Mortgage File.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loan 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 Loan 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; provided, however, that the delivery of the Mortgage File by
the Seller or BCRE shall satisfy the delivery requirements of the Seller under
this Section 2 and under Section 2.01 of the Pooling and Servicing Agreement.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered or caused to be delivered to the Trustee the Mortgage File
for the Mortgage Loan. If the Mortgage File is delivered prior to the Closing
Date, then the Mortgage File will be held by the Trustee in escrow at all times
prior to the Closing Date. The Mortgage File shall contain the documents set
forth in the definition of Mortgage File under the Pooling and Servicing
Agreement.
(e) If the Seller is unable to deliver or cause the delivery of the
original Mortgage Note, it may deliver a copy of such Mortgage Note, together
with a lost note affidavit, and indemnity, and shall thereby be deemed to have
satisfied the document delivery requirement. If the Seller cannot so deliver, or
cause to be delivered, as to the 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 Mortgage File. If the Seller cannot
or does not so deliver, or cause to be delivered, as to the 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
Mortgage File. If the Seller cannot so deliver, or cause to be delivered, as to
the Mortgage Loan, the Title Policy solely because such policy has not yet been
issued, the delivery requirements of Section 2(c) shall be deemed to be
satisfied as to such missing item, and such missing item shall be deemed to have
been included in the Mortgage File, provided that the Seller, shall have
delivered to the Trustee or a Custodian appointed thereby, on or before the
Closing Date, a binding commitment for title insurance "marked-up" at the
closing of the Mortgage Loan countersigned by the related title company or its
authorized agent.
(f) [Reserved].
(g) [Reserved].
(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 the 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
Loan to the Purchaser as a sale of the Mortgage Loan 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 File and Due Diligence Review.
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The Seller shall reasonably cooperate with an examination of the
Mortgage File and Servicing File for the Mortgage Loan 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 the Mortgage File
and/or Servicing File shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the Seller.
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(a) The Seller hereby represents and warrants to and for the benefit
of the Purchaser as of the Closing Date that:
(i) The Seller is a corporation, duly authorized, validly
existing and in good standing under the laws of the State of New
York.
(ii) The execution and delivery of this Agreement by the
Seller, and the performance of Seller's obligations under this
Agreement, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material agreement or other instrument to which it is
a party or which is applicable to it or any of its assets, which
default or breach, in the Seller's good faith and commercially
reasonable judgment is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under
this Agreement or its financial condition.
(iii) The Seller has the full power and authority to enter
into and perform its obligations under this Agreement, has duly
authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium and other laws affecting the enforcement of creditors'
rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or
at law.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the terms of this Agreement will not constitute a violation of, any
law, any order or decree of any court or arbiter, or any order,
regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in the Seller's good faith
and reasonable judgment, is likely to affect materially and
adversely either the ability of the Seller to perform its
obligations under this Agreement or the financial condition of the
Seller.
(vi) No litigation is pending with regard to which the Seller
has received service of process or, to the best of the Seller's
knowledge, threatened against the Seller which if determined
adversely to the Seller would prohibit the Seller from entering into
this Agreement, or in the Seller's good faith and reasonable
judgment, would be likely to materially and adversely affect either
the ability of the Seller to perform its obligations under this
Agreement or the financial condition of the Seller.
(vii) No consent, approval, authorization or order of, or
filing or registration with, any state or federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated herein, except for those
consents, approvals, authorizations and orders that previously have
been obtained and those filings and registrations that previously
have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are
contemplated by the Pooling and Servicing Agreement to be completed
after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) the 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 the Mortgage Loan (the
"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. Notwithstanding the foregoing, with respect to the
Pamida Portfolio Mortgage Loan, (i) the sole remedy of the Seller shall be to
cure such Material Document Defect or Material Breach, as applicable, or to
repurchase its related Mortgage Note and (ii) any cure by either the Seller or
BCRE with respect to its respective Mortgage Note that also cures the Material
Document Defect or Material Breach with respect to the Pamida Portfolio Mortgage
Loan shall satisfy the cure obligations of both the Seller and BCRE with respect
to such Mortgage Loan. The Seller shall have no obligation to monitor the
Mortgage Loan 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 the Mortgage Loan, it will notify the Purchaser and BCRE.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect
to the 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 the 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 the 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 the Mortgage Loan if it is a Specially Serviced Loan
as of the commencement of the applicable Initial Resolution Period,
zero days; provided, however, that if the Seller did not receive
written notice from the Master Servicer or the Special Servicer of
the relevant Servicing Transfer Event as of the commencement of the
applicable Initial Resolution Period, then such Servicing Transfer
Event shall be deemed to have occurred during such Initial
Resolution Period and the immediately preceding clause (iii) of this
definition will be deemed to apply.
In addition, the applicable Seller shall have an additional 90 days
to cure such Material Document Defect or Material Breach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
If (x) the Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) the applicable Material
Breach or Material Document Defect does not constitute a Material Breach or
Material Document Defect, as the case may be, 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 each other Mortgaged Property included in such portfolio
and the Seller shall repurchase or substitute the entire 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 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 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 the remaining 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 Mortgaged Properties as to which the Material Breach or Material
Document Defect exists or to repurchase or substitute for the aggregate
Mortgaged Properties.
To the extent that the Seller repurchases or substitutes for an
affected Mortgaged Property in the manner prescribed above, the Seller and the
Depositor shall uncross the affected Mortgaged Property. If the exercise of
remedies by one party would impair the ability of the other party to exercise
its remedies with respect to the Mortgaged Properties held by such party, then
both parties shall forbear from exercising such remedies until the Mortgage Loan
documents can be modified to remove the threat of impairment as a result of the
exercise of remedies.
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 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 the 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. In addition, the
failure of BCRE to honor its obligations under the related mortgage loan
purchase and sale agreement in respect of the Pamida Portfolio Mortgage Loan
shall not increase the liability or obligations of the Seller hereunder.
In the event that the Seller's portion of the Pamida Portfolio
Mortgage Loan is repurchased pursuant to this Section 4 and the other related
50% pari passu interest is not repurchased by BCRE and such Mortgage Loan
remains in the Trust, the Seller and the Depositor hereby agree that the
provisions in Section 3.01(f) of the Pooling and Servicing Agreement shall
govern the servicing and administration of Pamida Portfolio Mortgage Loan on a
whole loan basis (including the repurchased Mortgage Note and the other related
Mortgage Note not so repurchased) and the Seller's and the Depositor's rights
and obligations with respect thereto.
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 the
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
the 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 the 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 the Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its
designee of any notice of any remaining deficiencies to the Mortgage
File as of the 90th day following the Closing Date, the Seller shall
reconfirm its obligation to complete the 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 the Mortgage File; provided,
that with respect to the Pamida Portfolio Mortgage Loan, each of the
Seller and BCRE are only liable for its pro rata share (i.e., 50%)
of any such costs and expenses incurred with respect to such
Mortgage Loan; 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 the Mortgage File would otherwise
cause a delay.
(e) [Reserved].
(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 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
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Purchaser.
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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 Loan or the consummation
of any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
---------------------
The parties hereto shall cooperate with Ernst & Young, LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
--------
The closing of the sale of the Mortgage Loan (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 File and
Servicing File for the Mortgage Loan 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 Loan on the Closing Date.
SECTION 8. Closing Documents.
------------------
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser and
the Seller, and the Pooling and Servicing Agreement, duly executed and delivered
by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
Secretary of the State of New York, dated not earlier than 30 days prior to the
Closing Date; and
(e) A certificate of the Seller, executed by an executive officer or
authorized signatory of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely to the
effect that (i) the representations and warranties of the Seller in the
Agreement are true and correct in all material respects at and as of the date
hereof with the same effect as if made on the date hereof, and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Agreement to be performed or
satisfied at or prior to the date hereof; and
(f) A written opinion of counsel for the Seller, subject to such
reasonable assumptions and qualifications as may be requested by counsel for the
Seller each as reasonably acceptable to counsel for the Purchaser, the
Underwriters and the Initial Purchasers, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Trustee, the Initial Purchasers and each
Rating Agency any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the respective
parties thereto; and
(j) One or more comfort letters from the Accountants dated the date
of any preliminary Prospectus Supplement, Prospectus Supplement and Memorandum,
respectively, and addressed to, and in form and substance acceptable to the
Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memorandum stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loan 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.
Each of the Seller and BCRE shall only be required to pay its pro rata share
(i.e., 50%) of any such costs with respect to the Pamida Portfolio Mortgage
Loan.
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 Citigroup Global Markets Realty Corp., 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx (with copy
to Xxxx Xxxx, Citigroup Global Markets Realty Corp., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 10013), 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 Loan 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 Loan 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 the 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 the Mortgage Loan. To the extent of any such assignment, such
transferee shall be deemed to be the Purchaser hereunder (but solely with
respect to the 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 Loan.
------------------------------------------------
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 Loan. It is,
further, not intended that such conveyance be deemed a pledge of the Mortgage
Loan 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 Loan 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 Loan, 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 Mortgage File, (B) all amounts payable to the holders of
the Mortgage Loan 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 Loan, 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. [Reserved].
-----------
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.
CITIGROUP CAPITAL MARKETS REALTY CORP.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
BANC OF AMERICA COMMERCIAL MORTGAGE
INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Sequence Loan Number Loan Seller (1) Property Name
-------- ----------- --------------- -------------------------
7 20061737 Barclays/Citi Pamida Portfolio (Rollup)
7.1 20061737 Barclays/Citi Pamida - Headquarters
7.2 20061737 Barclays/Citi Pamida - Wahpeton
7.3 20061737 Barclays/Citi Pamida - Mt Carmel
7.4 20061737 Barclays/Citi Pamida - Glasgow
7.5 20061737 Barclays/Citi Pamida - Glenwood
7.6 20061737 Barclays/Citi Pamida - Xxxxxxx
7.7 20061737 Barclays/Citi Pamida - Archbold
7.8 20061737 Barclays/Citi Pamida - Detroit Lakes
7.9 20061737 Barclays/Citi Pamida - Xxxxxx
7.10 20061737 Barclays/Citi Pamida - Fergus Falls
7.11 20061737 Barclays/Citi Pamida - Manistique
7.12 20061737 Barclays/Citi Pamida - Perry
7.13 20061737 Barclays/Citi Xxxxxx - Xxxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxx
7.15 20061737 Barclays/Citi Xxxxxx - Xxxxxxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxx
7.17 20061737 Barclays/Citi Pamida - Xxxx
7.18 20061737 Barclays/Citi Pamida - Madison
7.19 20061737 Barclays/Citi Pamida - Woodsfield
7.20 20061737 Barclays/Citi Pamida - Allegan
7.21 20061737 Barclays/Citi Pamida - Park Rapids
7.22 20061737 Barclays/Citi Pamida - Tuscola
7.23 20061737 Barclays/Citi Pamida - Arcadia
7.24 20061737 Barclays/Citi Pamida - Montpelier
7.25 20061737 Barclays/Citi Pamida - Rockville
7.26 20061737 Barclays/Citi Xxxxxx - Xxxxxxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxxxxx
7.28 20061737 Barclays/Citi Pamida - Lancaster
7.29 20061737 Barclays/Citi Xxxxxx - Xxxxxxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxxx
7.31 20061737 Barclays/Citi Pamida - Waukon
7.32 20061737 Barclays/Citi Pamida - Oconto
7.33 20061737 Barclays/Citi Pamida - Dowagiac
7.34 20061737 Barclays/Citi Pamida - Hodgenville
7.35 20061737 Barclays/Citi Xxxxxx - Xxxxxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxxxxx
7.37 20061737 Barclays/Citi Pamida - Dyersville
7.38 20061737 Barclays/Citi Pamida - Washington
7.39 20061737 Barclays/Citi Xxxxxx - Xxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxx
7.41 20061737 Barclays/Citi Pamida - Xxxxxxxx
7.42 20061737 Barclays/Citi Xxxxxx - Xxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxxxxxxx
7.44 20061737 Barclays/Citi Xxxxxx - Xxxxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxxxxx
7.46 20061737 Barclays/Citi Pamida - Scottsville
7.47 20061737 Barclays/Citi Pamida - Clintonville
7.48 20061737 Barclays/Citi Pamida - Xxxxxxxxxx
7.49 20061737 Barclays/Citi Pamida - Smithville
7.50 20061737 Barclays/Citi Pamida - Xxxxxxx
7.51 20061737 Barclays/Citi Pamida - Centerville
7.52 20061737 Barclays/Citi Pamida - Clarion
7.53 20061737 Barclays/Citi Pamida - Ashland
7.54 20061737 Barclays/Citi Pamida - Xxxxxxx
7.55 20061737 Barclays/Citi Pamida - Sturgis
7.56 20061737 Barclays/Citi Pamida - Xxxxx Xxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxxxxxx
7.58 20061737 Barclays/Citi Pamida - Estherville
7.59 20061737 Barclays/Citi Pamida - Somerville
7.60 20061737 Barclays/Citi Pamida - Memphis
7.61 20061737 Barclays/Citi Pamida - Osceola
7.62 20061737 Barclays/Citi Xxxxxx - Xxxxxx
0.00 00000000 Xxxxxxxx/Xxxx Xxxxxx - Xxxxxx
7.64 20061737 Barclays/Citi Pamida - Gallatin
7.65 20061737 Barclays/Citi Pamida - Xxx
7.66 20061737 Barclays/Citi Pamida - Plentywood
Totals
Sequence Street Address City State
-------- ------------------------------------------- ------------- -------
7 Various Various Various
7.1 0000 X Xxxxxx Xxxxx XX
7.2 0000 0xx Xxxxxx Xxxxx Xxxxxxxx XX
7.3 0000 Xxxx 0xx Xxxxxx Xxxxx Xxxxxx XX
7.4 000 Xxx 0 Xxxx/X.X. Xxx 0000 Xxxxxxx XX
7.5 000 Xxxxxx Xxxx 00 Xxxxx Xxxxxxxx XX
7.6 000 Xxxxxx Xxxxxx Xxxxxxx XX
7.7 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX
7.8 000 Xxxxxxx 00 Xxxx Xxxxxxx Xxxxx XX
7.9 0000 XX Xxxxxxx 00X Xxxxxx XX
7.10 000 Xxxx Xxxxxxx Xxxxxx Xxxxxx Xxxxx XX
7.11 000 Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX
7.12 0000 000xx Xxxxxx Xxxxx XX
7.13 00 Xxxx Xxxx Xxxx Xxxxx Xxxxxxx XX
7.14 0000 Xxxx Xxxx Xxxxxx Xxxxxx XX
7.15 000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx XX
7.16 00000 Xxxxx Xxxxxxx Xxxx Xxxxx XX
7.17 0000 Xxxxx Xxxxxxx Xxxxx Xxxx XX
7.18 000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx XX
7.19 000 Xxxxxxxxxx Xxxx Xxxxxxxxxx XX
7.20 000 Xxxxxx Xxxxx Xxxxxxx XX
7.21 Xxxxxxx 00 Xxxx Xxxx Xxxxxx XX
7.22 000 Xxxxxxxx Xxxx. Xxxxxxx XX
7.23 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX
7.24 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX
7.25 000 Xxxxx XX Xxxxxxx 00/XX0 Xxxxxxxxx XX
7.26 000 Xxxx Xxxxxx Xxxxxx and Princeton Street Vermillion SD
7.27 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx XX
7.28 0000 XX Xxxxxxx 00 Xxxxx Xxxxxxxxx XX
7.29 Xxxxxxx 000/XX #0000 Xxxxxxxxxx XX
7.30 000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX
7.31 000 00xx Xxxxxx Xxxxxxxxx Xxxxxx XX
7.32 000 Xxxxxxx Xxxxxx (Xxxxx Xxxxx 00) Xxxxxx XX
7.33 00000 Xxxxxxx Xxxxxx Xxxxxxxx XX
7.34 000 Xxxx Xxxx Xxxxxxxxx Xxxxxxxxxxx XX
7.35 One Loogootee Plaza Loogootee IN
7.36 0000 Xxxxx Xxxxx Xxxx 00 Xxxxxxxxxx XX
7.37 0000 00xx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX
7.38 0000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX
7.39 0000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX
7.40 000 Xxxxxxx Xxxxxx Xxxxxxx XX
7.41 501 Xxxx Xxxxxx Drive Xxxxxxxx IN
7.42 000 Xxxxxxx Xxxx Xxxxxx XX
7.43 000 Xxxx Xxx Xxxx Xxxxxxxxxxxx XX
7.44 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX
7.45 000 Xxxxxxx Xxxx Xxxxxxxxxx XX
7.46 0000 Xxx Xxxxxxxx Xxxx Xxxxxxxxxxx XX
7.47 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxxxx XX
7.48 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx XX
7.49 000 Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX
7.50 0000 Xxxxx 00xx Xxxxxx Xxxxxxx XX
7.51 0000 Xxxxx Xxxxxxx 000 Xxxxxxxxxxx XX
7.52 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX
7.53 0000 Xxxx Xxxxx Xxxxx Xxxx Xxxxxxx XX
7.54 0000 Xxxx Xxxxx Xxxxxxx XX
7.55 0000 Xxxxxxx Xxxxxx Xxxxxxx XX
7.56 000 Xxxxx Xxxxxxxx Xxxxx Xxx XX
7.57 000 Xxxxx Xxxxxx Xxxxxxxxxx XX
7.58 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX
7.59 00 Xxxxxxxx Xxxxx Xxxxxxxxxx XX
7.60 Xxxxxxx 000 Xxxx Xxxxxxx XX
7.61 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
7.62 0000 Xxxx Xxxx Xxxxxx Xxxxxx XX
7.63 000 Xxxxx Xxxx Xxxxxx Xxxxxx XX
7.64 000 Xxxxx Xxxx Xxxxxx Xxxxxxxx XX
7.65 000 Xxxx Xxxxxxx Xxx XX
7.66 000 0xx Xxxxxx Xxxx Xxxxxxxxxx XX
Sequence Zip Code Mortgage Rate (2) Amortization Basis (3) Original Balance
-------- -------- ----------------- ---------------------- ----------------
7 Various 6.588% Actual/360 $68,813,864
7.1 68127 $5,697,941
7.2 58075 $1,588,517
7.3 62863 $1,567,797
7.4 59230 $1,533,264
7.5 56334 $1,450,385
7.6 44657 $1,381,319
7.7 43502 $1,339,880
7.8 56501 $1,312,253
7.9 82435 $1,250,094
7.10 56537 $1,236,281
7.11 49854 $1,236,281
7.12 50220 $1,208,654
7.13 49337 $1,201,748
7.14 47918 $1,194,841
7.15 61856 $1,187,934
7.16 48617 $1,174,121
7.17 49420 $1,174,121
7.18 57042 $1,174,121
7.19 43793 $1,167,215
7.20 49010 $1,139,588
7.21 56470 $1,139,588
7.22 61953 $1,118,868
7.23 54612 $1,105,055
7.24 43543 $1,105,055
7.25 47872 $1,105,055
7.26 57069 $1,105,055
7.27 45123 $1,084,335
7.28 53813 $1,077,429
7.29 47424 $1,070,522
7.30 54216 $1,070,522
7.31 52172 $1,070,522
7.32 54153 $1,056,709
7.33 49047 $1,049,803
7.34 42748 $1,042,896
7.35 47553 $1,035,989
7.36 47567 $1,022,176
7.37 52040 $1,001,456
7.38 52353 $987,643
7.39 62644 $966,923
7.40 42539 $966,923
7.41 47446 $966,923
7.42 42064 $960,017
7.43 42765 $946,204
7.44 61951 $946,204
7.45 42261 $932,390
7.46 42164 $932,390
7.47 54929 $890,951
7.48 38570 $856,418
7.49 37166 $856,418
7.50 64424 $811,525
7.51 37033 $794,258
7.52 50525 $776,992
7.53 54806 $725,193
7.54 82301 $642,313
7.55 57785 $638,860
7.56 50854 $583,607
7.57 66839 $569,794
7.58 51334 $552,528
7.59 38068 $524,901
7.60 63555 $507,635
7.61 50213 $507,635
7.62 82520 $493,822
7.63 64402 $293,530
7.64 64640 $258,997
7.65 55731 $255,544
7.66 59254 $189,931
Remaining Term
Cut-off To Stated
Sequence Date Balance(1) Maturity (months) Stated Maturity Date Due Date
-------- --------------- ----------------- -------------------- --------
7 $68,754,506 116 6/5/2016 5th
7.1 $5,693,026
7.2 $1,587,147
7.3 $1,566,445
7.4 $1,531,942
7.5 $1,449,134
7.6 $1,380,128
7.7 $1,338,724
7.8 $1,311,121
7.9 $1,249,015
7.10 $1,235,214
7.11 $1,235,214
7.12 $1,207,612
7.13 $1,200,711
7.14 $1,193,810
7.15 $1,186,910
7.16 $1,173,108
7.17 $1,173,108
7.18 $1,173,108
7.19 $1,166,208
7.20 $1,138,605
7.21 $1,138,605
7.22 $1,117,903
7.23 $1,104,102
7.24 $1,104,102
7.25 $1,104,102
7.26 $1,104,102
7.27 $1,083,400
7.28 $1,076,500
7.29 $1,069,599
7.30 $1,069,599
7.31 $1,069,599
7.32 $1,055,798
7.33 $1,048,897
7.34 $1,041,996
7.35 $1,035,096
7.36 $1,021,294
7.37 $1,000,593
7.38 $986,791
7.39 $966,089
7.40 $966,089
7.41 $966,089
7.42 $959,189
7.43 $945,387
7.44 $945,387
7.45 $931,586
7.46 $931,586
7.47 $890,182
7.48 $855,679
7.49 $855,679
7.50 $810,825
7.51 $793,573
7.52 $776,322
7.53 $724,567
7.54 $641,759
7.55 $638,309
7.56 $583,104
7.57 $569,303
7.58 $552,051
7.59 $524,448
7.60 $507,197
7.61 $507,197
7.62 $493,396
7.63 $293,277
7.64 $258,774
7.65 $255,324
7.66 $189,768
$68,754,506
Administrative Primary Servicing Master Servicing
Sequence Monthly Payment Fee Rate(4) Fee Rate Fee Rate
-------- --------------- -------------- ----------------- ----------------
7 $440,007 0.041% 0.020% 0.040%
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
7.19
7.20
7.21
7.22
7.23
7.24
7.25
7.26
7.27
7.28
7.29
7.30
7.31
7.32
7.33
7.34
7.35
7.36
7.37
7.38
7.39
7.40
7.41
7.42
7.43
7.44
7.45
7.46
7.47
7.48
7.49
7.50
7.51
7.52
7.53
7.54
7.55
7.56
7.57
7.58
7.59
7.60
7.61
7.62
7.63
7.64
7.65
7.66
Cross-Collateralized Original
Sequence Ownership Interest Loans Amortization(months)
-------------------- ------------------ -------------------- --------------------
7 Fee No 357
7.1 Fee
7.2 Fee
7.3 Fee
7.4 Fee
7.5 Fee
7.6 Fee
7.7 Fee
7.8 Fee
7.9 Fee
7.10 Fee
7.11 Fee
7.12 Fee
7.13 Fee
7.14 Fee
7.15 Fee
7.16 Fee
7.17 Fee
7.18 Fee
7.19 Fee
7.20 Fee
7.21 Fee
7.22 Fee
7.23 Fee
7.24 Fee
7.25 Fee
7.26 Fee
7.27 Fee
7.28 Fee
7.29 Fee
7.30 Fee
7.31 Fee
7.32 Fee
7.33 Fee
7.34 Fee
7.35 Fee
7.36 Fee
7.37 Fee
7.38 Fee
7.39 Fee
7.40 Fee
7.41 Fee
7.42 Fee
7.43 Fee
7.44 Fee
7.45 Fee
7.46 Fee
7.47 Fee
7.48 Fee
7.49 Fee
7.50 Fee
7.51 Fee
7.52 Fee
7.53 Fee
7.54 Fee
7.55 Fee
7.56 Fee
7.57 Fee
7.58 Fee
7.59 Fee
7.60 Fee
7.61 Fee
7.62 Fee
7.63 Fee
7.64 Fee
7.65 Fee
7.66 Fee
Sequence ARD Loan Grace Period Loan Group
-------- -------- ------------ ----------
7 No 0 1
7.1 1
7.2 1
7.3 1
7.4 1
7.5 1
7.6 1
7.7 1
7.8 1
7.9 1
7.10 1
7.11 1
7.12 1
7.13 1
7.14 1
7.15 1
7.16 1
7.17 1
7.18 1
7.19 1
7.20 1
7.21 1
7.22 1
7.23 1
7.24 1
7.25 1
7.26 1
7.27 1
7.28 1
7.29 1
7.30 1
7.31 1
7.32 1
7.33 1
7.34 1
7.35 1
7.36 1
7.37 1
7.38 1
7.39 1
7.40 1
7.41 1
7.42 1
7.43 1
7.44 1
7.45 1
7.46 1
7.47 1
7.48 1
7.49 1
7.50 1
7.51 1
7.52 1
7.53 1
7.54 1
7.55 1
7.56 1
7.57 1
7.58 1
7.59 1
7.60 1
7.61 1
7.62 1
7.63 1
7.64 1
7.65 1
7.66 1
1)For Mortgage Loan Number 20061737 the loan is co-originated by BCRE (50%) and
CGMRC (50%). Citi will be loan seller for their portion. Amount represented is
combined contribution.
2)Rates are to full precision in the "BACM2006_5.xls" file located on the
computer diskette.
3)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.
4)Administrative Fee Rate includes the rates at which the master servicing fee
(and any sub-servicing fee) and trustee fee accrue.
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily mortgage lenders, as applicable, at the time of the origination of
the particular Mortgage Loan and (ii) subsequent to such origination, utilizing
the servicing and monitoring practices customarily utilized by prudent
commercial mortgage loan servicers with respect to securitizable commercial or
multifamily, as applicable, mortgage loans, and the Seller shall have made
prudent inquiries of related servicers, and the phrases "to the actual knowledge
of the Seller" or "to the Seller's actual knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of the Seller
without any express or implied obligation to make inquiry. All information
contained in documents which are part of or required to be part of a Mortgage
File (each such document, a "Loan Document") shall be deemed to be within the
knowledge and the actual knowledge of the Seller. Wherever there is a reference
to receipt by, or possession of, the Seller of any information or documents, or
to any action taken by the Seller or not taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or not taking such
action by the Seller or any servicer acting on its behalf.
The Seller represents and warrants with respect to each Mortgage
Loan that, as of the date specified below or, if no such date is specified, as
of the Closing Date:
(1) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule") was true and correct in all material
respects as of the Cut-off Date.
(2) Legal Compliance - Origination, Funding and Servicing. As
of the date of its origination, and to the actual knowledge of the
Seller as of the Closing Date, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination, funding and
servicing of such Mortgage Loan.
(3) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Purchaser, the Seller had good title
to, and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges, security interests, participation interests and/or
of any other interests or encumbrances of any nature whatsoever
(except for the Title Exceptions), and the Seller has full right,
power and authority to sell, transfer and assign each Mortgage Loan
free and clear of all such liens, claims, pledges, charges and
interests or encumbrances. The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and
to such Mortgage Loan. The sale of the Mortgage Loans to the
Purchaser does not require the Seller to obtain any governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Trustee and each such endorsement is genuine.
(4) No Holdbacks; Improvements Complete or Escrows
Established. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has been disbursed but a portion thereof is being held
in escrow or reserve accounts pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with
respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. Any and all
requirements under each Mortgage Loan as to completion of any
on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose, have been complied with in all material
aspects or any such funds so escrowed have not been released;
provided that partial releases of such funds in accordance with the
applicable Loan Documents may have occurred.
(5) Legal, Valid and Binding Obligations. Each related
Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed in
connection with such Mortgage Loan is a legal, valid and binding
obligation of the related Mortgagor or guarantor (subject to any
non-recourse provisions therein and any state anti-deficiency
legislation or market value limit deficiency legislation),
enforceable in accordance with its terms, except with respect to
provisions relating to default interest, late fees, additional
interest, yield maintenance charges or prepayment premiums and
except as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(6) Assignment of Leases and Rents. There exists as part of
the related Mortgage File an Assignment of Leases either as a
separate document or as part of the Mortgage. Each related
Assignment of Leases creates a valid, collateral or first priority
assignment of, or a valid perfected first priority security interest
in, certain rights under the related leases, subject only to a
license granted to the related Mortgagor to exercise certain rights
and to perform certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged Property and
subject to limits on enforceability described in Paragraph (5). No
Person other than the related Mortgagor owns any interest in any
payments due under the related leases. Each related Assignment of
Leases provides for the appointment of a receiver for rent, allows
the holder to enter into possession to collect rents or provides for
rents to be paid directly to the holder of the Mortgage upon an
event of default under the Mortgage Loan documents.
(7) No Offset or Defense. There is no right of offset,
abatement, diminution, or rescission or valid defense or
counterclaim with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith,
except as enforcement may be limited by bankruptcy and principles of
equity and, in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, yield maintenance charges or prepayment
premiums and, as of the Closing Date, to the Seller's actual
knowledge no such rights have been asserted.
(8) Mortgage Status; Legal, Valid and Binding Obligations.
Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee has been duly authorized,
executed and delivered in recordable form by the Seller and
constitutes the legal, valid, binding and enforceable assignment
from the Seller, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law);
provided, if the related assignment of Mortgage and/or assignment of
Assignment of Leases has been recorded in the name of Mortgage
Electronic Registration Systems, Inc. ("MERS") or its designee, no
assignment of Mortgage and/or assignment of Assignment of Leases in
favor of the Trustee will be required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to
cause the Trust to be shown as the owner of the related Mortgage
Loan on the records of MERS for purposes of the system of recording
transfers of beneficial ownership of mortgages maintained by MERS.
Each related Mortgage and Assignment of Leases is freely assignable
upon notice to but without the consent of the related Mortgagor.
(9) Mortgage Lien. Subject to the exceptions set forth in
Paragraph (5) above, each related Mortgage is a legal, valid and
enforceable first lien on the related Mortgaged Property, subject
only to the following title exceptions (each such exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of current real property taxes, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate,
materially interferes with the current use or operation of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) any other exceptions and exclusions (general
and specific) set forth in the mortgagee policy of title insurance
issued with respect to the Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) the right of
tenants (whether under ground leases or space leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases), and (e) if such Mortgage Loan constitutes a
Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Cross-Collateralized
Group; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are prior to or equal with
the lien of the related Mortgage, except those which are insured
against by a lender's title insurance policy as described above and
to the Seller's actual knowledge no rights are outstanding that
under applicable law could give rise to any such lien that would be
prior or equal to the lien of the related Mortgage and is not bonded
over, escrowed for or covered by insurance.
(10) UCC Filings. The security agreements or other
instruments, if any, related to the Mortgage Loan establish and
create, and a UCC Financing Statement has been filed, recorded or
submitted for recording in all places required by applicable law for
the perfection of (to the extent that the filing of such a UCC
Financing Statement can perfect such a security interest), a valid
security interest in the personal property granted under such
Mortgage (and any related security agreement), except as
enforceability may be limited by bankruptcy or other laws affecting
enforcement of creditor's rights generally or by the application of
the rules of equity, and except for certain personal property and
fixtures subject to purchase money security interests and personal
property leases permitted under the terms of the Mortgage Loan. In
the case of a Mortgaged Property operated as a hotel, restaurant,
healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center,
such personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on like
properties would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated, and the
related perfected security interest is prior to any other security
interest that can be perfected by such UCC filing, except for
permitted purchase money security interests and leases; provided
that any such lease has been pledged or assigned to the lender and
its assigns. In the case of each Mortgage Loan secured by a hotel,
the related Loan Documents contain such provisions as are necessary
and UCC Financing Statements have been filed or submitted for filing
as necessary, in each case, to perfect a valid first priority
security interest in the related revenues with respect to such
Mortgaged Property (to the extent that a filing of such a UCC
Financing Statement can perfect such a security interest). An
assignment of each UCC Financing Statement relating to the Mortgage
Loan has been delivered by Seller in blank which the Purchaser or
Trustee, as applicable, or designee is authorized to complete and to
file in the filing office in which such UCC Financing Statement was
filed. Each Mortgage Loan and the related Mortgage (along with any
security agreement and UCC Financing Statement), together with
applicable state law, contain customary and enforceable provisions
such as to render the rights and remedies of the holders thereof
adequate for the practical realization against the personal property
described above, and the principal benefits of the security intended
to be provided thereby; provided, if the related security agreement
and/or UCC Financing Statement has been recorded in the name of MERS
or its designee, no assignment of security agreement and/or UCC
Financing Statement in favor of the Trustee will be required to be
prepared or delivered and instead, the Seller shall take all actions
as are necessary to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by MERS. Notwithstanding the foregoing, no representation
is made as to the perfection of any security interest in rents or
any other personal property to the extent that the possession or
control of such items or actions other than the filing of the UCC
Financing Statement as required in order to effect such perfection.
(11) Taxes and Assessments. All taxes and governmental
assessments or charges or water or sewer bills that prior to the
Cut-off Date became due and owing in respect of each related
Mortgaged Property have been paid, or if in dispute, an escrow of
funds in an amount sufficient to cover such payments has been
established. Such taxes and assessments shall not be considered
delinquent or due and owing until the date on which interest or
penalties may first be payable thereon.
(12) Condition of Property; No Condemnation; No Encroachments.
In the case of each Mortgage Loan, one or more engineering
assessments which included a physical visit and inspection of the
Mortgaged Property were performed by an independent engineering
consultant firm and except as set forth in an engineering report
prepared in connection with such assessment, a copy of which has
been delivered to the Master Servicer, the related Mortgaged
Property is, to the Seller's knowledge as of the Closing Date, free
and clear of any damage that would materially and adversely affect
its value as security for such Mortgage Loan. If an engineering
report revealed any material damage or deficiencies, material
deferred maintenance or other similar conditions, either (a) an
escrow of funds was required or a letter of credit was obtained in
an amount equal to at least 125% of the amount estimated to effect
the necessary repairs, or such other amount as a prudent commercial
lender would deem appropriate under the circumstances sufficient to
effect the necessary repairs or maintenance or (b) such repairs and
maintenance have been completed. As of origination of such Mortgage
Loan there was no proceeding pending, and subsequent to such date,
the Seller has no actual knowledge of, any proceeding pending for
the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. To the Seller's knowledge
(based solely on surveys (if any) and/or the lender's title policy
(or, if not yet issued, a pro forma title policy or "marked up"
commitment) obtained in connection with the origination of each
Mortgage Loan), as of the date of the origination of each Mortgage
Loan and to the Seller's knowledge as of the Cut-off Date: (a) all
of the material improvements on the related Mortgaged Property lay
wholly within the boundaries and, to the extent in effect at the
time of construction, building restriction lines of such property,
except for encroachments that are insured against by the lender's
title insurance referred to in Paragraph (13) below or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and (b) no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to
materially and adversely affect the use or the value of such
Mortgaged Property, except those encroachments that are insured
against by the lender's title insurance referred to in Paragraph
(13) below.
(13) Title Insurance. The Seller has received an ALTA lender's
title insurance policy or an equivalent form of lender's title
insurance policy (or if such policy is not yet issued, such
insurance may be evidenced by a "marked up" pro forma policy or
title commitment, in either case marked as binding and countersigned
by the title insurer or its authorized agent either on its face or
by an acknowledged closing instruction or escrow letter) as adopted
in the applicable jurisdiction (the "Title Insurance Policy"), which
was issued by a title insurance company qualified to do business in
the jurisdiction where the applicable Mortgaged Property is located
to the extent required, insuring the portion of each Mortgaged
Property comprised of real estate and insuring the originator of
such Mortgage Loan and its successors and assigns (as sole insureds)
that the related Mortgage is a valid first lien in the original
principal amount of the related Mortgage Loan on the Mortgagor's fee
simple interest (or, if applicable, leasehold interest) in such
Mortgaged Property comprised of real estate, subject only to the
Title Exceptions. Such Title Insurance Policy was issued in
connection with the origination of the related Mortgage Loan. No
claims have been made under such Title Insurance Policy. Such Title
Insurance Policy is in full force and effect, provides that the
insured includes the owner of the Mortgage Loan and all premiums
thereon have been paid. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee (including
endorsement and delivery of the related Mortgage Note to the
Purchaser), such Title Insurance Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the
benefit of the Purchaser and its successors and assigns without
consent or notice to the title insurer. The Seller has not done, by
act or omission, anything that would impair the coverage under such
Title Insurance Policy. Such Title Insurance Policy contains no
exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such
affirmative insurance is not available), (a) access to a public
road, (b) that there are no encroachments of any part of the
building thereon over easements, and (c) that the area shown on the
survey is the same as the property legally described in the related
Mortgage.
(14) Insurance. All improvements upon each Mortgaged Property
securing a Mortgage Loan are insured by all insurance coverage
required under each related Mortgage, which insurance covered such
risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located. Each
Mortgaged Property was covered by a fire and extended perils
included under the classification "All Risk of Physical Loss"
insurance (or the equivalent) policy in an amount at least equal to
the lesser of the outstanding principal balance of such Mortgage
Loan and 100% of the replacement cost of the improvements located on
the related Mortgaged Property, and if applicable, the related
hazard insurance policy contains appropriate endorsements to avoid
the application of co-insurance and does not permit reduction in
insurance proceeds for depreciation. Each Mortgaged Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss insurance policy providing coverage for at least twelve
(12) months (or a specified dollar amount which, in the reasonable
judgement of the Seller, will cover no less than twelve (12) months
of rental income). If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Federal Emergency Management Agency as a
special flood hazard area (Zone A or Zone V) (an "SFH Area"), and
flood insurance was available, a flood insurance policy meeting the
requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance
carrier, in an amount representing coverage not less than the least
of (a) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (b) the
outstanding principal balance of such Mortgage Loan, and (c) the
maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property and
all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by
reasonably prudent commercial lenders for similar properties; if any
Mortgaged Property is located in the state of California or in a
"seismic zone" 3 or 4, a seismic assessment was conducted (except in
the case of mobile home parks) at the time of originations and
seismic insurance was obtained to the extent such Mortgaged Property
has a PML of greater than twenty percent (20%) calculated using at
least a 450 a year look back with a 10% probability of exceedance in
a 50 year period; all properties in Florida and within 25 miles of
the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina and South Carolina have windstorm insurance; any
nonconformity with applicable zoning laws and ordinances (1) is not
a material nonconformity and does not materially and adversely
affect the use, operation or value of the Mortgaged Property, (2)
constitutes a legal non-conforming use or structure which, in the
event of casualty or destruction, may be restored or repaired to
materially the same extent of the use or structure at the time of
such casualty, (3) is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or
multifamily, as applicable, mortgage lenders, (4) is covered by a
zoning endorsement covering any loss to the mortgagee resulting from
such non-conformity or (5) is covered by insurance that will provide
proceeds that, together with the value of the related land, will be
sufficient to repay the Mortgage Loan; and additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth
herein has a claims paying ability rating from Standard & Poor's,
Xxxxx'x or Fitch of not less than A-minus (or the equivalent), or
from A.M. Best of not less than "A:V" (or the equivalent). At
origination, and to the Seller's knowledge as of the Closing Date,
such insurance was, or is, as applicable, in full force and effect
with respect to each related Mortgaged Property and no notice of
termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain
amounts not greater than amounts which would be considered prudent
by an institutional commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Loan
Documents, any insurance proceeds in respect of a casualty loss will
be applied either to (1) the repair or restoration of the related
Mortgaged Property with the mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse
the proceeds as the repair or restoration progresses, other than
with respect to amounts that are customarily acceptable to
commercial and multifamily mortgage lending institutions, or (2) the
reduction of the outstanding principal balance of the Mortgage Loan.
The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required. All
such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee, and are not
terminable (nor may the amount of coverage provided thereunder be
reduced) without 30 days' prior written notice to the mortgagee (or,
with respect to non-payment, 10 days' prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law;
and no such notice has been received, including any notice of
non-payment of premiums, that has not been cured. With respect to
each Mortgage Loan, the related Mortgage requires that the related
Borrower or a tenant of such Borrower maintain insurance as
described above or permits the mortgagee to require insurance as
described above. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender after September
11, 2001 or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, for
each Mortgage Loan, (A) the related all risk property casualty
insurance policy and business interruption policy do not exclude
acts of terrorism, or any related damage claims or (B) Borrower has
obtained insurance satisfying the above coverage requirements
against damage and business interruption resulting from acts of
terrorism, from coverage as of the later of (i) the date of
origination of the Mortgage Loan and (ii) the date as of which the
policy was renewed or amended, and the related Loan Documents do not
expressly prohibit or waive such coverage, except to the extent that
any right to require such coverage may be limited by commercially
reasonable availability. The Mortgage for each Mortgage Loan
provides that proceeds paid under any such casualty insurance policy
will (or, at the lender's option, will) be applied either to the
repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the
related Mortgage may entitle the related Borrower to any portion of
such proceeds remaining after the repair or restoration of the
related Mortgaged Property or payment of amounts due under the
Mortgage Loan; and provided, further, that, if the related Borrower
holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph (44) below).
(15) No Material Defaults. Other than payments due but not yet
30 days or more delinquent (A) there exists no material default,
breach, violation or event of acceleration under the related Loan
Documents and (B) since the date of origination of such Mortgage
Loan, there has been no declaration by the Seller or prior holder of
such Mortgage Loan of an event of acceleration under the related
Loan Documents, and (C) to Seller's actual knowledge no event which,
with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default, breach,
violation or event of acceleration under any of such documents has
occurred and is continuing; the Seller has not waived any material
default, breach, violation or event of acceleration under any of
such documents; and under the terms of each Mortgage Loan, each
related Mortgage Note, each related Mortgage and the other Loan
Documents in the related Mortgage File, no person or party other
than the mortgagee may declare an event of default or accelerate the
related indebtedness under the Loan Documents; provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to the subject matter otherwise covered by any
other representation and warranty made by the Seller in this
Schedule II.
(16) Payment Record. Each Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months) has not been, 30
days or more past due in respect of any Monthly Payment without
giving effect to any applicable grace or cure period.
(17) Additional Collateral. The related Loan Documents do not
provide for or permit, without the prior written consent of the
holder of the Mortgage Note, each related Mortgaged Property to
secure any other promissory note or obligation, other than another
Mortgage Loan.
(18) Qualified Mortgage. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the
Code (but without regard to the rule in Treasury Regulations
1.860G-2(f)(2) that treats a defective obligation as a qualified
mortgage, or any substantially similar successor provision) and the
related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section
860G(a)(8), assuming compliance with all of the requirements of a
"foreclosure property" under Section 856(e)(4) by the Trustee, the
Master Servicer, the Special Servicer, as applicable, and their
respective agents, but without regard to the holding period
requirements set forth in Section 856(e)(2). Prepayment Premiums and
yield maintenance charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
(19) Environmental Conditions. One or more property condition
or engineering reports (relating to lead-based paint, asbestos and
radon gas) or environmental site assessments meeting the
requirements of the American Society for Testing and Materials in
effect at the time the related report was or the related reports
were prepared covering all environmental hazards typically assessed
for similar properties including use, type and tenants of the
Mortgaged Property (an "Environmental Report"), or an update of such
an assessment, was performed by an experienced licensed (to the
extent required by applicable state law) environmental consulting
firm with respect to each Mortgaged Property securing a Mortgage
Loan in connection with the origination of such Mortgage Loan and
thereafter updated such that, (a) such Environmental Report is dated
no earlier than twelve months prior to the Closing Date, (b) a copy
of each such Environmental Report has been delivered to the
Purchaser; and (c) either: (i) no such Environmental Report provides
that as of the date of the report there is a material violation of
any applicable environmental laws with respect to any circumstances
or conditions relating to the related Mortgaged Property; or (ii) if
any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the
same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) a party not related
to the related Mortgagor with financial resources reasonably
adequate to cure the subject violation in all material respects was
identified as the responsible party for such condition or
circumstance, (B) the related Mortgagor was required to provide
additional security adequate to cure the subject violation in all
material respects and to obtain an operations and maintenance plan,
(C) such conditions or circumstances were investigated further and
based upon such additional investigation, an independent
environmental consultant recommended no further investigation or
remediation, or recommended only the implementation of an operations
and maintenance program, which the Mortgagor is required to do, (D)
there exists an escrow of funds reasonably estimated to be
sufficient for purposes of effecting such remediation, (E) the
related Mortgaged Property is insured under a policy of insurance
against losses arising from such circumstances and conditions, (F)
the circumstance or condition has been fully remediated, (G) the
related Mortgagor provided a "no further action" letter or other
evidence acceptable to the Seller and that would be acceptable to a
reasonably prudent lender, that applicable federal, state or local
governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such
condition or circumstance, (H) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is the lesser
of (a) 2% of the outstanding principal balance of the related
Mortgage Loan and (b) $200,000, (I) the related Mortgagor or another
responsible party is currently taking such actions, if any, with
respect to such circumstances or conditions as have been required by
the applicable governmental regulatory authority, or (J) a
responsible party with financial resources reasonably adequate to
cure the violation provided a guaranty or indemnity to the related
Mortgagor to cover the costs of any required investigation, testing,
monitoring or remediation. To the Seller's actual knowledge and
without inquiry beyond the related Environmental Report, there are
no significant or material circumstances or conditions with respect
to any Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Mortgagor questionnaire delivered
to Seller at the issue of any related environmental insurance
policy, if applicable, that render such Mortgaged Property in
material violation of any applicable environmental laws. The
Mortgage, or other Loan Document in the Mortgage File, for each
Mortgage Loan encumbering the Mortgaged Property requires the
related Mortgagor to comply and cause the Mortgaged Property to
comply with all applicable federal, state and local environmental
laws and regulations. The Seller has not taken any action which
would cause the Mortgaged Property not to be in compliance with all
federal, state and local laws pertaining to environmental hazards or
which could subject the Seller or its successors and assigns to
liability under such laws. Each Mortgagor represents and warrants in
the related Loan Documents generally to the effect that except as
set forth in certain specified environmental reports and to the best
of its knowledge that as of the date of origination of such Mortgage
Loan, there were no hazardous materials on the related Mortgaged
Property, and that the Mortgagor will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials, in
any manner which violates federal, state or local laws, ordinances,
regulations, orders, directives, or policies governing the use,
storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend
and hold the Seller and its successors and assigns harmless from and
against, or otherwise be liable for, any and all losses resulting
from a breach of environmental representations, warranties or
covenants given by the Mortgagor in connection with such Mortgage
Loan, generally including any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind or
nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any
such party resulting from such breach.
(20) Customary Mortgage Provisions. The related Loan Documents
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if customary,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose except
any statutory right of redemption or as may be limited by
anti-deficiency laws or by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principals of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(21) Bankruptcy. No Mortgaged Property, nor any material
portion thereof, is the subject of and no Mortgagor is a debtor in
any state or federal bankruptcy or insolvency or similar proceeding.
(22) Whole Loan; Interest Only; No Equity Participation or
Contingent Interest. Each Mortgage Loan is a whole loan and not a
participation interest in a loan. No Mortgage Loan contains any
equity participation by the mortgagee thereunder, is convertible by
its terms into an equity ownership interest in the related Mortgaged
Property or the related Mortgagor, has a shared appreciation
feature, provides for any contingent or additional interest in the
form of participation in the cash flow of the related Mortgaged
Property, or provides for interest-only payments without principal
amortization (except as disclosed in the Prospectus Supplement) or
for the negative amortization of interest, except that, in the case
of an ARD Loan, such Mortgage Loan provides that, during the period
commencing on or about the related Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be
payable only after the outstanding principal of such Mortgage Loan
is paid in full, and (b) subject to available funds, a portion of
the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to
the principal portion of the related Monthly Payment. Neither the
Seller nor any affiliate thereof has any obligation to make any
capital contribution to the Mortgagor under the Mortgage Loan or
otherwise nor holds any equity interest in any Mortgagor.
(23) Transfers and Subordinate Debt. The Mortgage Loan does
not permit the related Mortgaged Property or any interest therein,
including any ownership interest in the Mortgagor, to be encumbered
by any mortgage lien or other encumbrance except the related
Mortgage or the Mortgage of another Mortgage Loan without the prior
written consent of the holder thereof. To Seller's knowledge, as of
origination, and, to the Seller's actual knowledge as of the Closing
Date, except for cases involving other Mortgage Loans, none of the
Mortgaged Properties securing the Mortgage Loans is encumbered by
any mortgage liens junior to or of equal priority with the liens of
the related Mortgage. The Loan Documents require the Mortgagor to
pay all reasonable costs and expenses related to any required
consent to any transfer or encumbrance, including reasonable legal
fees and expenses and any applicable Rating Agency fees. The Loan
Documents contain a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of
the Mortgage, either the related Mortgaged Property, or any direct
equity interest in the related Mortgagor, is directly or indirectly
pledged, transferred or sold, other than by reason of family and
estate planning transfers, transfers of less than a controlling
interest in the Mortgagor, issuance of non-controlling new equity
interests, transfers that are subject to the holder's approval of
transferee and satisfaction of certain conditions specified in the
Loan Documents, transfers to an affiliate meeting the requirements
of the Mortgage Loan, transfers among existing members, partners or
shareholders in the Mortgagor, transfers among affiliated Mortgagors
with respect to cross-collateralized Mortgaged Loans or
multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan.
(24) Waivers and Modification. The terms of the related Loan
Documents have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any material
respect, except pursuant to a written instrument duly submitted for
recordation, to the extent required, and specifically included in
the related Mortgage Loan File. No alterations, waivers,
modifications or assumptions of any kind have been given, made or
consented to by or on behalf of the Seller since August 24, 2006.
The Seller has not taken any intentional action that would cause the
representations and warranties of the related Mortgagor under the
Mortgage Loan not to be true and correct in any material respect.
(25) Inspection. Each related Mortgaged Property was inspected
by or on behalf of the related originator within the 12 months prior
to the Closing Date.
(26) Releases of Mortgaged Property. Since origination, no
portion of the related Mortgaged Property has been released from the
lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgaged
Property or materially interferes with the security intended to be
provided by such Mortgage. The terms of the related Mortgage do not
provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration
of payment therefor equal to not less than 125% of the related
allocated loan amount of such Mortgaged Property specifically set
forth in the related Loan Documents, (b) upon payment in full of
such Mortgage Loan, (c) Mortgage Loans which permit defeasance by
means of substituting for the Mortgaged Property (or, in the case of
a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to
pay the Mortgage Loans in accordance with their terms, (d) Mortgage
Loans which permit the related Mortgagor to substitute a replacement
property subject to the satisfaction of enumerated conditions that
would be acceptable to a reasonably prudent commercial or
multifamily, as applicable, lender, but which do not include the
consent or approval of the lender to the substitution or the
substitute property, or (e) a portion of the Mortgaged Property that
was not given any value in connection with either the initial
underwriting or appraisal of the Mortgage Loan.
(27) Defeasance. With respect to any Mortgage Loan that
contains a provision for any defeasance of mortgage collateral (a
"Defeasance Loan"), the related Mortgage Note, Mortgage or other
related Loan Document contained in the Mortgage File, provides that
the defeasance option is not exercisable prior to a date that is at
least two (2) years following the Closing Date and is otherwise in
compliance with applicable statutes, rules and regulations governing
REMICs; requires prior written notice to the holder of the Mortgage
Loan of the exercise of the defeasance option and payment by
Mortgagor of all related fees, costs and expenses as set forth
below; requires, or permits the lender to require, the Mortgage Loan
(or the portion thereof being defeased) to be assumed by a
single-purpose entity; and requires delivery of a legal opinion that
the Trustee has a perfected security interest in such collateral
prior to any other claim or interest. In addition, each Mortgage
loan that is a Defeasance Loan permits defeasance only with
substitute collateral constituting "government securities" within
the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note
(or the portion thereof being defeased) when due, and in the case of
ARD Loans, assuming the Anticipated Repayment Date is the Stated
Maturity Date. Further, the Mortgage or other related Loan Document
contained in the Mortgage File requires that an independent
certified public accountant certify that such government securities
are sufficient to make all such scheduled payments when due. To
Seller's actual knowledge, defeasance under the Mortgage Loan is
only for the purpose of facilitating the release of the Mortgaged
Property and not as a part of an arrangement to collateralize a
REMIC with obligations that are not real estate mortgages. With
respect to each Defeasance Loan, the related Mortgage or other
related Loan Document provides that the related Mortgagor shall (or
permits the mortgagee to require the Mortgagor to) (a) pay all
Rating Agency fees associated with defeasance (if Rating Agency
approval is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not
limited to, accountant's fees and opinions of counsel, or (b)
provide all opinions reasonably required by the mortgagee under the
related Loan Documents, including, if applicable, a REMIC opinion
and a perfection opinion and any applicable rating agency letters
confirming no downgrade or qualification of ratings on any classes
in the transaction. Additionally, for any Mortgage Loan having a
Cut-off Date Balance equal to or greater than $20,000,000, the
Mortgage Loan or the related documents require (or permit the
mortgagee to require) confirmation from the Rating Agency that
exercise of the defeasance option will not cause a downgrade or
withdrawal of the rating assigned to any securities backed by the
Mortgage Loan and require (or permit the mortgagee to require) the
Mortgagor to pay any Rating Agency fees and expenses.
(28) Local Law Compliance; Non-Conforming Uses or
Improvements. To the Seller's knowledge as of the date of
origination of such Mortgage Loan, and, to the Seller's actual
knowledge, as of the Cut-off Date the Mortgaged Property and the
improvements located on or forming part of, and the existing use of,
each Mortgaged Property securing a Mortgage Loan was or are, as
applicable, in material compliance with all applicable zoning laws
including parking and ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy
thereof or constitute a legal non-conforming use or structure (or,
if any such improvement does not so comply and does not constitute a
legal non-conforming use or structure, either law and ordinance
insurance coverage has been obtained in amounts adequate to avoid
loss to the mortgagee, or such non-compliance and failure does not
materially and adversely affect the value of the related Mortgaged
Property).
(29) (reserved)
(30) Single-Purpose Entity. Each Mortgage Loan with an
original principal balance over $5,000,000 requires the Mortgagor to
be for at least for so long as the Mortgage Loan is outstanding, and
to Seller's actual knowledge each Mortgagor is, a Single-Purpose
Entity. For this purpose, "Single-Purpose Entity" means a person,
other than an individual, whose organizational documents provide,
and/or which entity represented and covenanted in the related Loan
Documents, substantially to the effect that such Mortgagor (i) is
formed or organized solely for the purpose of owning and operating
the related Mortgaged Property or Properties; (ii) does not engage
in any business unrelated to such Mortgaged Property or Properties
and the financing thereof; (iii) does not and will not have any
material assets other than those related to its interest in such
Mortgaged Property or Properties or the financing thereof; (iv) does
not and will not have any indebtedness other than as permitted by
the related Mortgage or other related Loan Documents; (v) maintains
its own books, records and accounts, in each case which are separate
and apart from the books, records and accounts of any other person;
and (vi) holds itself out as being a legal entity, separate and
apart from any other person. In addition, with respect to all
Mortgage Loans with an original principal balance of $15,000,000 or
more, the Mortgagor's organizational documents provide substantially
to the effect that the Mortgagor shall: observe all entity level
formalities and record keeping; conduct business in its own name;
not guarantee or assume the debts or obligations of any other
person; not commingle its assets or funds with those of any other
person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such
group; transact business with affiliates on an arm's length basis
pursuant to written agreements; hold itself out as being a legal
entity, separate and apart from any other person and such
organizational documents provide that: any dissolution or winding up
or insolvency filing for such entity is prohibited or requires the
unanimous consent of an independent director or member or all
partners or members, as applicable; such documents may not be
amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or rating agencies; and the
Mortgagor shall have an outside independent director or member. The
Mortgage File for each such Mortgage Loan having an original
principal balance of $20,000,000 or more contains a counsel's
opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving its equity owner or group of equity
owners having an equity interest greater than 49%. To Seller's
actual knowledge, each Mortgagor has fully complied with the
requirements of the related Mortgage Loan and Mortgage and the
Mortgagor's organizational documents regarding Single-Purpose-Entity
status. The organization documents of any Mortgagor on a Mortgage
Loan having an original principal balance of $15,000,000 or more
which is a single member limited liability company provide that the
Mortgagor shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member.
(31) No Advances. No advance of funds has been made after
origination, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due
on the Mortgage Note or the Mortgage.
(32) Litigation or Other Proceedings. To Seller's knowledge,
as of origination there were no, and to the Seller's actual
knowledge, as of the Closing Date, there are no, pending actions,
suits, litigation, arbitration or other proceedings by or before any
court, arbitrator or governmental authority against the Mortgagor
(or any related guarantor to the extent the Seller would consider
such guarantor material to the underwriting or such Mortgage Loan)
under any Mortgage Loan or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan, the
Mortgagor's ability to pay principal, interest or any other amounts
due under such Mortgage Loan or such guarantor's ability to meet its
obligations under the related Loan Documents.
(33) No Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) is a
fixed rate, and complied as of the date of origination with, or was
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury.
(34) Trustee Under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified
under applicable law to serve as such, has either been properly
designated and currently so serves or may be substituted in
accordance with the Mortgage and applicable law, and (b) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale
after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan and all such fees and expenses are
the obligation of the Mortgagor under the Mortgage.
(35) Other Collateral; Cross-Collateralization. The related
Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
(36) (reserved)
(37) Escrow Deposits. All escrow deposits and payments
required pursuant to the Loan Documents are in the possession, or
under the control, of the Seller or its agent and there are no
deficiencies in connection therewith, and all such escrows, deposits
and payments will be conveyed by the applicable Seller to the
Purchaser and identified as such with appropriate detail on the
Closing Date.
(38) Licenses and Permits. The Mortgage Loan requires the
related Mortgagor, to the extent required by law, to be qualified to
do business, and requires the related Mortgagor and the related
Mortgaged Property to be in material compliance with all
regulations, licenses, permits, authorizations, restrictive
covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified
or in compliance would have a material and adverse effect upon the
enforceability of the Mortgage Loan or upon the practical
realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. To the
Seller's knowledge, as of the date of origination of each Mortgage
Loan based on any of: (i) a letter from governmental authorities,
(ii) a legal opinion, (iii) an endorsement to the related Title
Insurance Policy, (iv) a zoning report from a zoning consultant, or
(v) other due diligence that the originator of the Mortgage Loan
customarily performs in the origination of comparable mortgage
loans, and to the Seller's actual knowledge as of the Closing Date,
the related Mortgagor was in possession of all material licenses,
permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then
operated or such material licenses and permits have otherwise been
issued.
(39) Origination, Servicing and Collection Practices. The
origination (or acquisition, as the case may be), collection, and
the servicing practices used by the Seller and its affiliates or
contractors engaged by it with respect to the Mortgage Loan have
been in all respects legal and have met customary standards utilized
by prudent commercial or multifamily, as applicable, lenders and
servicers.
(40) Borrower Organization. Each Borrower that is an entity is
organized under the laws of a state of the United States of America.
(41) Non-Recourse Exceptions. Each Mortgage Loan is
non-recourse, except that the Mortgagor and either: a principal of
the Mortgagor or other natural person, with assets other than any
interest in the Mortgagor, has agreed to be jointly and severally
liable for all liabilities, expenses, losses, damages, expenses or
claims suffered or incurred by the holder of the Mortgage Loan by
reason of or in connection with: (i) any fraud or material
misrepresentation by the Mortgagor, (ii) misapplication or
misappropriation of rents, insurance proceeds or condemnation awards
or (iii) violation of applicable environmental laws or breaches of
environmental covenants. No waiver of liability for such
non-recourse exceptions has been granted to the Mortgagor or any
such guarantor or principal by the Seller or anyone acting on behalf
of the Seller.
(42) Separate Tax Parcels. Each Mortgaged Property constitutes
one or more separate tax lots (or will constitute separate tax lots
when the next tax maps are issued), or, in certain instances, an
application has been made to the applicable governing authority for
creation of separate tax lots that shall be effective for the next
tax year (and, with respect to tax parcels for which such
application has been made, prior to the creation of such separate
tax lots, taxes are being escrowed for the entire existing tax
parcel), or is subject to an endorsement under the related Title
Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(43) Financial Statements. Each Mortgage or related Loan
Documents requires the Mortgagor upon request to provide the owner
or holder of the Mortgage with quarterly (except for Mortgage Loans
with an original principal balance less than $3,000,000) and annual
operating statements (or a balance sheet statement of income and
expenses and a statement of changes in financial position), and such
additional information regarding the Mortgagor and the Mortgaged
Property as the owner or holder of the Mortgage may request which
annual financial statements for all Mortgage Loans with an original
principal balance greater than $20 million shall be audited by an
independent certified public accountant upon the request of the
holder of the Mortgage Loan.
(44) Fee/Leasehold Properties. Each Mortgage Loan is secured
by the fee interest in the related Mortgaged Property, except that
with respect to Mortgage Loans that are secured by the interest of
the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall
mean such ground lease, all written amendments and modifications,
and any related estoppels or agreements from the ground lessor and,
in the event the Mortgagor's interest is a ground subleasehold,
shall also include not only such ground sublease but also the
related ground lease), but not by the related fee interest in such
Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been
duly recorded; such Ground Lease permits the interest of the
lessee thereunder to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns, in a manner that would
materially adversely affect the security provided by the
related Mortgage; and there has been no material change in the
terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the
related Mortgage File;
(b) Such Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and
Title Exceptions, and provides that it shall remain prior to
any mortgage or other lien upon the related Fee Interest;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its successors and assigns
upon notice to, but without the consent of, the lessor
thereunder (or, if such consent is required, it has been
obtained prior to the Closing Date) and, in the event that it
is so assigned, is further assignable by the mortgagee and its
successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor;
(d) Such Ground Lease is in full force and effect, and
the Seller has not received as of the Closing Date notice (nor
is the Seller otherwise aware) that any default has occurred
under such Ground Lease;
(e) Seller or its agent has provided the lessor under
the Ground Lease with notice of its lien, and such Ground
Lease requires the lessor to give notice of any default by the
lessee to the mortgagee, and such Ground Lease, or an estoppel
letter received by the mortgagee from the lessor, further
provides that no notice of termination given under such Ground
Lease is effective against such mortgagee unless a copy has
been delivered to such mortgagee in the manner described in
such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted
a reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease, and all of the rights of the
mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised
by or on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one
or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the Seller and its successors and assigns) which extends not
less than the greater of 10 years beyond the amortization term
and 20 years beyond the Stated Maturity Date for the related
Mortgage Loan (or, with respect to any Mortgage Loan with an
Anticipated Repayment Date, 10 years beyond the amortization
term);
(h) Such Ground Lease requires the lessor to enter into
a new lease with the mortgagee under such Mortgage Loan upon
termination of such Ground Lease for any reason, including
rejection of such Ground Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related
Loan Documents, taken together, any related insurance proceeds
or condemnation award that is awarded with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property,
with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the outstanding principal balance of such
Mortgage Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions
on subletting which would be viewed as commercially
unreasonable by a prudent commercial mortgage lender; and such
Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to
disturb the possession, interest or quiet enjoyment of any
lessee in the relevant portion of the Mortgaged Property
subject to such Ground Lease for any reason, or in any manner,
which would materially adversely affect the security provided
by the related Mortgage;
(k) Such Ground Lease may not be amended or modified
without the prior consent of the mortgagee under such Mortgage
Loan and that any such action without such consent is not
binding on such mortgagee, its successors or assigns;
(l) The terms of such Ground Lease have not been waived,
modified, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the
security intended to be provided by the related Mortgage.
(45) Fee Simple Interest. Except with respect to the Mortgage
Loans secured by Ground Leases, each of the Mortgagors (or its
affiliates) has title in the fee simple interest in each related
Mortgaged Property.
(46) ARD Loans. Each ARD Loan requires scheduled monthly
payments of principal; if any ARD Loan is not paid in full by its
Anticipated Repayment Date, and assuming that it is not otherwise in
default, the rate at which such Mortgage Loan accrues interest will
increase to the sum of the original Mortgage Rate and a specified
margin not less than 2 percent (2%); the Anticipated Repayment Date
of any such Mortgage Loan is not less than 7 years from the date of
origination; and after the Anticipated Repayment Date, the Loan
Documents provide that excess cash flow after payment of expenses,
including scheduled interest and capital expenditures approved by
the lender, will be used to repay principal.
(47) Authorization in Jurisdiction. To the extent required
under applicable law as of the date of origination, and necessary
for the enforceability or collectability of the Mortgage Loan, the
originator of such Mortgage Loan was authorized to do business in
the jurisdiction in which the related Mortgaged Property is located
at all times when it originated and held the Mortgage Loan.
(48) No Negative Amortization; No Capital Contribution; No
Financing for Incomplete Improvements. No Mortgage Loan, other than
an ARD Loan (and then only after the Anticipated Repayment Date for
such ARD Loan), provides for the negative amortization of interest.
Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage
Loan. The Mortgage Loan was not originated for the purpose of
financing the construction of incomplete improvements on the related
Mortgaged Property other than tenant improvements.
(49) No Fraud. Neither the Seller, the originator, nor any
employee or agent of the Seller or the originator has participated
in any fraud or intentional material misrepresentation with respect
to the Mortgagor, the Mortgaged Property or any guarantor. To
Seller's actual knowledge, no Mortgagor or guarantor is guilty of
defrauding or making an intentional material misrepresentation to
the Seller with respect to the origination of the Mortgage Loan, the
Mortgagor or the Mortgaged Property.
(50) Grace Periods. The related Mortgage or Mortgage Note
provides a grace period for delinquent Monthly Payments no longer
than 10 days from the applicable Due Date other than as disclosed in
the Mortgage Loan Schedule.
(51) Appraisals. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is signed by an
appraiser, who, to the Seller's knowledge, had no interest, direct
or indirect, in the Mortgaged Property or the Mortgagor or in any
loan made on the security thereof, and whose compensation is not
affected by the approval or disapproval of the Mortgage Loan; the
appraisal or a supplemental letter from the appraiser states that
the appraisal satisfies the appraisal guidelines set forth in Title
XI of the Financial Institutions Reform, Recovery and Enforcement
Act of 1989 (as amended), all as in effect on the date the Mortgage
Loan was originated.
(52) Mortgagor Concentration. Except as disclosed in the
Prospectus Supplement, (a) no Mortgagor is the Mortgagor with
respect to more than one Mortgage Loan and (b) to the Seller's
knowledge, no group of Mortgage Loans with affiliated mortgagors
have an aggregate principal balance equaling more than $152,000,000.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor
environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been
disclosed, in the application for such policy or
otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to such
Mortgaged Property which are in the Seller's possession
or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered to
the insurer under such policy copies of all
environmental reports in the Seller's possession related
to such Mortgaged Property,
in each case with respect to (i) and (ii) to
the extent required by such policy or to the
extent the failure to make any such disclosure or
deliver any such report would materially and
adversely affect the Purchaser's ability to
recover under such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term of
the Mortgage Loan (or 5 years beyond the Anticipated Repayment
Date with respect to an ARD Loan) and is not cancelable during
such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53) and
the environmental insurance for such Mortgage Loan is not a
secured creditor policy but was required to be obtained by the
Mortgagor, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have
been paid, such insurance is in full force and effect, such
policy may not be cancelled or amended without the consent of
the Seller or its successors and assigns and, to the Seller's
knowledge, the Mortgagor has made the disclosures and complied
with the requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or adjacent
to a public road, or has access to an irrevocable easement
permitting ingress and egress.
Citigroup - BACM 2006-5
Schedule IIA
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
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Mortgage Loan Exception
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Exceptions to Representation (14) Insurance.
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Loan No. 20061737 (Pamida The Borrower is permitted to maintain
Portfolio) insurance provided by a syndicate of
insurers, provided that the insurers with
respect to such insurance shall be acceptable
if: (i) the first layer of coverage under
such insurance shall be provided by carriers
with a minimum financial strength rating from
S&P of "A" or better; (ii) 60% (75% if there
are 4 or fewer members in the syndicate) of
the aggregate limits under such policies must
be provided by carriers with a minimum
financial strength rating from S&P of "A" or
better and (iii) the financial strength
rating from S&P for each carrier in the
syndicate shall have a financial strength
rating from S&P of at least "BBB".
Also, the Borrower is required to maintain
insurance against terrorism, terrorist acts
or similar acts in an amount that is
available for an annual premium of $75,000.00
in any fiscal year, increased annually based
on increases in the CPI Index.
--------------------------------------------------------------------------------
Exception to Representation (21) Bankruptcy.
--------------------------------------------------------------------------------
Loan No. 20061737 (Pamida The Seller makes no representation regarding
Portfolio) the bankruptcy or insolvency of any tenant
at the Mortgaged Property.
--------------------------------------------------------------------------------
Exceptions to Representation (22) Whole Loan.
--------------------------------------------------------------------------------
Loan No. 20061737 (Pamida The Mortgage Loan is not a whole loan but
Portfolio) rather is one of two pari passu promissory
notes, each evidencing a 50% interest in a
mortgage loan with an original principal
balance of $68,813,864.00.
--------------------------------------------------------------------------------
Exceptions to Representation (23) Transfers and Subordinate Debt.
--------------------------------------------------------------------------------
Loan No. 20061737 The Loan Documents permit a pledge of the
(Pamida Portfolio) indirect equity interests in the Borrower,
its members, or any affiliated manager or any
shareholder, partner, member or non-member
manager of the a Borrower, its members or any
affiliated manager by the sponsor to a
"qualified investor" in connection with a
line of credit, revolving credit facility or
other corporate facility secured by such a
pledge (a "Secured Line of Credit"), provided
that (i) no event of default under the
Mortgage Loan has occurred and is continuing
(ii) any such Secured Line of Credit is
secured by all, or substantially all, of the
equity interests owned by the sponsor; and
(iii) the lender shall have received at least
thirty (30) days prior written notice of the
proposed Secured Line of Credit.
--------------------------------------------------------------------------------
Exceptions to Representation (24) Waivers and Modification.
--------------------------------------------------------------------------------
Loan No. 20061737 (Pamida On September 11, 2006, the Mortgage Loan,
Portfolio) originally funded in the principal amount of
$65,846,258.00, was increased to
$68,813,864.00, with an additional funding
of $3,120,000.00.
--------------------------------------------------------------------------------
Exceptions to Representation (32) Litigation or Other Proceedings.
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Loan No. 20061737 (Pamida Federated Bond Fund, a Portfolio of
Portfolio) Federated Investment Series Funds, Inc. et
al v. ShopKo Stores, Inc., Sun Capital,
Partners Group IV, Inc., Sun Capital
Partners IV, LP, SKO Group Holdings Corp.,
and SKO Acquisition Group
This matter involves a tender by an affiliate
("Affiliate") of ShopKo Stores Operating Co.,
LLC (an operating tenant of the Mortgaged
Properties which no longer has any relation
to the borrower) to purchase its 9.25% Senior
Notes due March 15, 2023, Plaintiffs allege
(1) the Affiliate violated Section 14(e) of
the Securities Exchange Act of 1934 and that
any consent solicitations received after July
14, 2005 are invalid, (2) that the Affiliate
and the other defendants violated 15 U.S.C.A.
Section 78n(e) by manipulating proposed
merger transactions, first with an affiliate
of Xxxxxxx Xxxx Xxxxxxx & Xxxxxxxx, Inc. and
then with an affiliate of Sun Capital
Partners, (3) that the Affiliate committed
fraud and coercion in the inducement, and (4)
that the Affiliate fraudulently
misrepresented the proposed merger
transactions. The Affiliate intends to
vigorously defend this action. The Affiliate
and the other defendants have filed a motion
to dismiss the action in lieu of an Answer,
an oral argument and the motion was heard on
May 12, 2006.
Xxxx Xxxxxxx, Individually and on behalf of
-------------------------------------------
others similarly situated v. ShopKo Stores,
-------------------------------------------
d/b/a ShopKo Stores and Pamida Stores
-------------------------------------
Purported class action filed by a former
general merchandise manager in Boise, Idaho,
seeking (1) unpaid wages and overtime
pursuant to FLSA, (2) declaration that the
Affiliate's practices violate the FLSA, and
(3) injunction prohibiting the Affiliate from
continuing to misclassify persons in
assistant manager positions as exempt from
the wage and overtime requirements of the
FLSA, and from destroying, altering or
discarding evidence and records. The
Affiliate has filed a summary judgment motion
that is pending before the Court. The
Affiliate intends to vigorously defend this
action.