Exhibit 99.2
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement")
is dated and effective as of November 1, 2006, between Bear Xxxxxxx Commercial
Mortgage, Inc., as seller (the "Seller" or "BSCMI"), and Banc of America
Commercial Mortgage Inc., as purchaser (the "Purchaser" or "BACM").
The Seller desires to sell, assign, transfer and otherwise convey
to the Purchaser, and the Purchaser desires to purchase, subject to the terms
and conditions set forth below, the multifamily and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule annexed hereto as Schedule I
(the "Mortgage Loan Schedule").
The Purchaser intends to transfer or cause the transfer of: (i)
the Mortgage Loans and (ii) certain mortgage loans transferred by Bank of
America to the Purchaser pursuant to a mortgage loan purchase and sale
agreement, dated as of the date hereof between Bank of America and the
Purchaser, 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 November 1, 2006 (the "Pooling and Servicing
Agreement"), among BACM, as depositor, Bank of America, National Association, as
master servicer (the "Master Servicer"), CWCapital Asset Management, LLC, as
special servicer (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as
trustee (in such capacity, the "Trustee") and as REMIC administrator.
Capitalized terms used but not otherwise defined herein have the respective
meanings assigned to them in the Pooling and Servicing Agreement.
BACM intends to sell the Offered Certificates to Banc of America
Securities LLC ("BAS"), Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), Citigroup
Global Markets Inc. ("Citigroup") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx" and, collectively with BAS, Bear Xxxxxxx and Citigroup, the
"Underwriters") pursuant to an underwriting agreement, dated as of November 20,
2006 (the "Underwriting Agreement"). BACM intends to sell the remaining Classes
of Certificates (the "Non-Offered Certificates") to BAS and Bear Xxxxxxx and, as
initial purchasers (together, the "Initial Purchasers"), pursuant to a
certificate purchase agreement, dated as of November 20, 2006 (the "Certificate
Purchase Agreement"), among BACM, BAS, and Bear Xxxxxxx. The Offered
Certificates are more fully described in the prospectus dated November 20, 2006
(the "Base Prospectus"), and the supplement to the Base Prospectus dated
November 20, 2006 (the "Prospectus Supplement"; and, together with the Base
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 November 20, 2006 (the
"Memorandum"), as it may be amended or supplemented at any time hereafter.
The Seller will indemnify the Underwriters, the Initial
Purchasers and certain related parties with respect to certain disclosure
regarding the Mortgage Loans and contained in the Prospectus, the Memorandum and
certain other disclosure documents and offering materials relating to the
Certificates, pursuant to an indemnification agreement, dated as of November 20,
2006 (the "Indemnification Agreement"), among the Seller, the Purchaser, the
Underwriters and the Initial Purchasers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase and Sell.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the Mortgage Loans. The closing for the purchase and sale of the Mortgage Loans
shall take place on the Closing Date. The purchase price for the Mortgage Loans
shall be an amount agreed upon by the parties in a separate writing, which
amount includes interest accrued on the Mortgage Loans after the Cut-off Date
and takes into account credits, sales concessions, any related Interest Deposit
Amount and such other adjustments as agreed to between the parties in a separate
writing which amount shall be payable on or about November 29, 2006 in
immediately available funds. The Purchaser shall be entitled to all interest
accrued on the Mortgage Loans on and after the Cut-off Date and all principal
payments received on the Mortgage Loans after the Cut-off Date except for
principal and interest payments due and payable on the Mortgage Loans on or
before the Cut-off Date, which shall belong to the Seller.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and satisfaction of the other
conditions set forth herein, the Seller will transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, but subject to the terms
and conditions of this Agreement, all the right, title and interest of the
Seller in and to the Mortgage Loans (other than the Servicing Rights), including
without limitation all principal and interest due on or with respect to the
Mortgage Loans after the Cut-off Date, together with BSCMI's right, title and
interest in and to any related insurance policies and all other documents in the
related Mortgage Files.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong and be promptly remitted to the Seller).
(c) On or before the Closing Date or within the time periods
specified in Section 2.01 of the Pooling and Servicing Agreement, the Seller
shall deliver or cause to be delivered to the Purchaser or, if so directed by
the Purchaser, to the Trustee or a custodian designated by the Trustee (a
"Custodian"), the documents, instruments and agreements required to be delivered
by the Purchaser to the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of such Section 2.01, and such other
documents, instruments and agreements as the Purchaser or the Trustee shall
reasonably request.
(d) The Seller hereby represents that it has, on behalf of the
Purchaser, delivered to the Trustee the Mortgage File for each Mortgage Loan.
All Mortgage Files delivered prior to the Closing Date will be held by the
Trustee in escrow at all times prior to the Closing Date. Each Mortgage File
shall contain the documents set forth in the definition of Mortgage File under
the Pooling and Servicing Agreement.
(e) If the Seller is unable to deliver or cause the delivery of
any original Mortgage Note, it may deliver a copy of such Mortgage Note,
together with a lost note affidavit, and indemnity, and shall thereby be deemed
to have satisfied the document delivery requirement. If the Seller cannot so
deliver, or cause to be delivered, as to any Mortgage Loan, the original or a
copy of any of the documents and/or instruments referred to in clauses (ii),
(iii), (vi), (viii) and (x) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, with evidence of recording or filing (if applicable,
and as the case may be) thereon, solely because of a delay caused by the public
recording or filing office where such document or instrument has been delivered
for recordation or filing, as the case may be, so long as a copy of such
document or instrument, certified by the Seller as being a copy of the document
deposited for recording or filing, has been delivered, and then subject to the
requirements of Section 4(d), the delivery requirements of Section 2(c) shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File. If the
Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan, the original of any of the documents and/or instruments referred
to in clauses (iv) and (v) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement, because such document or instrument has been delivered
for recording or filing, as the case may be, then subject to Section 4(d), the
delivery requirements of Section 2(c) shall be deemed to have been satisfied as
to such missing item, and such missing item shall be deemed to have been
included in the related Mortgage File. If the Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan, the Title Policy solely because such
policy has not yet been issued, the delivery requirements of Section 2(c) shall
be deemed to be satisfied as to such missing item, and such missing item shall
be deemed to have been included in the related Mortgage File, provided that the
Seller, shall have delivered to the Trustee or a Custodian appointed thereby, on
or before the Closing Date, a binding commitment for title insurance "marked-up"
at the closing of such Mortgage Loan countersigned by the related title company
or its authorized agent.
(f) [Reserved].
(g) In connection with its assignment of the Mortgage Loans
hereunder, the Seller hereby expressly assigns to or at the direction of the
Depositor to the Trustee for the benefit of the Certificateholders any and all
rights it may have with respect to representations and warranties made by a
third party originator with respect to any Mortgage Loan under the mortgage loan
purchase agreement between the Seller and such third party originator that
originated such Mortgage Loan pursuant to which the Seller originally acquired
such Mortgage Loan from such third party originator.
(h) If and when the Seller is notified of or discovers any error
in the Mortgage Loan Schedule attached to this Agreement as to which a Mortgage
Loan is affected, the Seller shall promptly amend the Mortgage Loan Schedule and
distribute such amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing Agreement; provided, however, that the correction or amendment of the
Mortgage Loan Schedule by itself shall not be deemed to be a cure of a Material
Breach.
(i) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the Purchaser
in exchange for the consideration referred to in Section 1 hereof. In connection
with the foregoing, the Seller shall cause all of its records to reflect such
transfer as a sale (as opposed to a secured loan).
SECTION 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall reasonably cooperate with an examination of the
Mortgage Files and Servicing Files for the Mortgage Loans that may be undertaken
by or on behalf of the Purchaser. The fact that the Purchaser has conducted or
has failed to conduct any partial or complete examination of such Mortgage Files
and/or Servicing Files shall not affect the Purchaser's (or any other specified
beneficiary's) right to pursue any remedy available hereunder for a breach of
the Seller's representations and warranties set forth in Section 4, subject to
the terms and conditions of Section 4(c).
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby represents and warrants to and for the
benefit of the Purchaser as of the Closing Date that:
(i) The Seller is a corporation, duly authorized, validly
existing and in good standing under the laws of the State of 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 or orders that previously have been obtained and those
filings and registrations that previously have been completed, and
except for those filings and recordings of Mortgage Loan documents and
assignments thereof that are contemplated by the Pooling and Servicing
Agreement to be completed after the Closing Date.
(b) The Seller hereby makes the representations and warranties
contained in Schedule II (subject to any exceptions thereto listed on Schedule
IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of
such other dates specifically provided in the particular representation and
warranty), with respect to (and solely with respect to) each Mortgage Loan.
(c) Upon discovery of any Material Breach or Material Document
Defect, the Purchaser or its designee shall notify the Seller thereof in writing
and request that the Seller correct or cure such Material Breach or Material
Document Defect. Within 90 days of the earlier of discovery or receipt of
written notice by the Seller that there has been a Material Breach or a Material
Document Defect (such 90-day period, the "Initial Resolution Period"), the
Seller shall (i) cure such Material Breach or Material Document Defect, as the
case may be, in all material respects or (ii) repurchase each affected Mortgage
Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase
Price in accordance with the terms hereof and, if applicable, the terms of the
Pooling and Servicing Agreement, with payment to be made in accordance with the
reasonable directions of the Purchaser; provided that if the Seller certifies in
writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of
Counsel, any such Material Breach or Material Document Defect, as the case may
be, does not and will not cause the Defective Mortgage Loan, to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii)
that such Material Breach or Material Document Defect, as the case may be, is
capable of being corrected or cured but not within the applicable Initial
Resolution Period, (iii) that the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Document Defect, as
the case may be, within the applicable Initial Resolution Period, and (iv) that
the Seller anticipates that such Material Breach or Material Document Defect, as
the case may be, will be corrected or cured within an additional period not to
exceed the Resolution Extension Period (as defined below), then the Seller shall
have an additional period equal to the applicable Resolution Extension Period to
complete such correction or cure or, failing such, to repurchase the Defective
Mortgage Loan; and provided, further, that, if the Seller's obligation to
repurchase any Defective Mortgage Loan as a result of a Material Breach or
Material Document Defect arises within the three-month period commencing on the
Closing Date (or within the two-year period commencing on the Closing Date if
the Defective Mortgage Loan is a "defective obligation" within the meaning of
Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section
1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling
and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing
such Defective Mortgage Loan (but, in any event, no later than such repurchase
would have to have been completed), (i) replace such Defective Mortgage Loan
with one or more substitute mortgage loans that individually and collectively
satisfy the requirements of the definition of "Qualifying Substitute Mortgage
Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any
corresponding Substitution Shortfall Amount, such substitution and payment to be
effected in accordance with the terms of the Pooling and Servicing Agreement.
Any such repurchase or replacement of a Defective Mortgage Loan shall be on a
whole loan, servicing released basis. The Seller shall have no obligation to
monitor the Mortgage Loans regarding the existence of a Material Breach or
Material Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser.
For purposes of this Section 4(c), "Resolution Extension Period"
shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is not a Specially Serviced Loan at
the commencement of, and does not become a Specially Serviced Loan
during, the applicable Initial Resolution Period, the period commencing
at the end of the applicable Initial Resolution Period and ending on,
and including, the earlier of (i) the 90th day following the end of such
Initial Resolution Period and (ii) the 45th day following receipt by the
Seller of written notice from the Master Servicer or the Special
Servicer of the occurrence of any Servicing Transfer Event with respect
to such Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a not a Specially Serviced Loan as
of the commencement of the applicable Initial Resolution Period, but as
to which a Servicing Transfer Event occurs during such Initial
Resolution Period, the period commencing at the end of the applicable
Initial Resolution Period and ending on, and including, the 90th day
following receipt by the Seller of written notice from the Master
Servicer or the Special Servicer of the occurrence of such Servicing
Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, zero days;
provided, however, that if the Seller did not receive written notice
from the Master Servicer or the Special Servicer of the relevant
Servicing Transfer Event as of the commencement of the applicable
Initial Resolution Period, then such Servicing Transfer Event shall be
deemed to have occurred during such Initial Resolution Period and the
immediately preceding clause (iii) of this definition will be deemed to
apply.
In addition, the applicable Seller shall have an additional 90
days to cure such Material Document Defect or Material Breach, provided that the
Seller has commenced and is diligently proceeding with the cure of such Material
Document Defect or Material Breach and such failure to cure is solely the result
of a delay in the return of documents from the local filing or recording
authorities.
If one or more of the Mortgage Loans constituting a
Cross-Collateralized Group are the subject of a Breach or Document Defect, then,
for purposes of (i) determining whether such Breach or Document Defect is a
Material Breach or Material Document Defect, as the case may be, and (ii) the
application of remedies, such Cross-Collateralized Group shall be treated as a
single Mortgage Loan.
If (x) any Mortgage Loan is required to be repurchased or
substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a
Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged
Properties (that provides that a property may be uncrossed from the other
Mortgaged Properties) and (z) the applicable Material Breach or Material
Document Defect does not constitute a Material Breach or Material Document
Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan
or applies to only specific Mortgaged Properties included in such portfolio
(without regard to this paragraph), then the applicable Material Breach or
Material Document Defect (as the case may be) will be deemed to constitute a
Material Breach or Material Document Defect (as the case may be) as to any
related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property
included in such portfolio and the Seller shall repurchase or substitute for any
related Cross-Collateralized Mortgage Loan in the manner described above unless,
in the case of a Material Breach or Material Document Defect, both of the
following conditions would be satisfied if the Seller were to repurchase or
substitute for only the affected Cross-Collateralized Mortgage Loans or affected
Mortgaged Properties as to which a Material Breach or Material Document Defect
had occurred without regard to this paragraph: (i) the debt service coverage
ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged
Properties for the four calendar quarters immediately preceding the repurchase
or substitution is not less than the greater of (a) the debt service coverage
ratio immediately prior to the repurchase, (b) the debt service coverage ratio
on the Closing Date, and (c) 1.25x and (ii) the loan-to-value ratio for any
remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not
greater than the lesser of (a) the loan-to-value ratio immediately prior to the
repurchase, (b) the loan-to-value ratio on the Closing Date, and (c) 75%. In the
event that both of the conditions set forth in the preceding sentence would be
satisfied, the Seller may elect either to repurchase or substitute for only the
affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which
the Material Breach or Material Document Defect exists or to repurchase or
substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged
Properties.
To the extent that the Seller repurchases or substitutes for an
affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner
prescribed above while the Trustee continues to hold any related
Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either
uncross the repurchased Cross-Collateralized Mortgage Loan or affected Mortgaged
Property or, in the case of a Cross-Collateralized Mortgage Loan, forbear from
enforcing any remedies against the other's Primary Collateral (as defined
below), but each is permitted to exercise remedies against the Primary
Collateral securing its respective affected Cross-Collateralized Mortgage Loans
or Mortgaged Properties, including, with respect to the Trustee, the Primary
Collateral securing Mortgage Loans still held by the Trustee, so long as such
exercise does not impair the ability of the other party to exercise its remedies
against its Primary Collateral. If the exercise of remedies by one party would
impair the ability of the other party to exercise its remedies with respect to
the Primary Collateral securing the Cross-Collateralized Mortgage Loans or
Mortgaged Properties held by such party, then both parties shall forbear from
exercising such remedies until the related Mortgage Loan documents can be
modified to remove the threat of impairment as a result of the exercise of
remedies. "Primary Collateral" shall mean the Mortgaged Property directly
securing a Cross-Collateralized Mortgage Loan excluding, however, any Mortgaged
Property as to which the related lien may only be foreclosed upon by exercise of
cross-collateralization of such loans.
Whenever one or more mortgage loans are substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c), the Seller shall
(i) deliver the related Mortgage File for each such substitute mortgage loan to
the Purchaser or its designee, (ii) certify that such substitute mortgage loan
satisfies or such substitute mortgage loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Purchaser or its designee. No mortgage loan may be substituted for a
Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent correction or cure, in all material respects, of the relevant
Material Breach or Material Document Defect, the Defective Mortgage Loan will be
required to be repurchased as contemplated hereby. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage
Loan, after the date on which it is added to the Trust Fund) and on or prior to
the related date of repurchase or replacement, shall belong to the Purchaser and
its successors and assigns. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each Defective Mortgage
Loan (if any) after the related date of repurchase or replacement, shall belong
to the Seller.
If any Defective Mortgage Loan is to be repurchased or replaced
as contemplated by this Section 4, the Seller shall amend the Mortgage Loan
Schedule attached to this Agreement to reflect the removal of the Defective
Mortgage Loan and, if applicable, the substitution of the related Replacement
Mortgage Loan(s) and shall forward such amended schedule to the Purchaser.
Except as set forth in Section 4(f), it is understood and agreed
that the obligations of the Seller set forth in this Section 4(c) to cure a
Material Breach or a Material Document Defect or repurchase or replace the
related Defective Mortgage Loan(s), constitute the sole remedies available to
the Purchaser with respect to any Breach or Document Defect.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the
Purchaser shall have executed and delivered such instruments of transfer or
assignment then presented to it by the Seller, in each case without recourse, as
shall be necessary to vest in the Seller the legal and beneficial ownership of
such Defective Mortgage Loan (including any property acquired in respect thereof
or proceeds of any insurance policy with respect thereto ), to the extent that
such ownership interest was transferred to the Purchaser hereunder.
(d) Subject to the specific delivery requirements set forth in
the Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing
Date any document that is required to be part of the Mortgage File for any
Mortgage Loan, then:
(i) the Seller shall use diligent, good faith and commercially
reasonable efforts from and after the Closing Date to obtain, and
deliver to the Purchaser or its designee, all documents missing from
such Mortgage File that were required to be delivered by the Seller;
(ii) the Seller shall provide the Purchaser with periodic reports
regarding its efforts to complete such Mortgage File, such reports to be
made on the 90th day following the Closing Date and every 90 days
thereafter until the Seller has delivered to the Purchaser or its
designee all documents required to be delivered by the Seller as part of
such Mortgage File;
(iii) upon receipt by the Seller from the Purchaser or its
designee of any notice of any remaining deficiencies to such Mortgage
File as of the 90th day following the Closing Date, the Seller shall
reconfirm its obligation to complete such Mortgage File and to correct
all deficiencies associated therewith, and, if it fails to do so within
45 days after its receipt of such notice, the Seller shall deliver to
the Purchaser or its designee a limited power of attorney (in a form
reasonably acceptable to the Seller and the Purchaser) permitting the
Purchaser or its designee to execute all endorsements (without recourse)
and to execute and, to the extent contemplated by the Pooling and
Servicing Agreement, record all instruments or transfer and assignment
with respect to the subject Mortgage Loan, together with funds
reasonably estimated by the Purchaser to be necessary to cover the costs
of such recordation;
(iv) the Seller shall reimburse the Purchaser and all parties
under the Pooling and Servicing Agreement for any out-of-pocket costs
and expenses resulting from the Seller's failure to deliver all
documents required to be part of such Mortgage File; and
(v) the Seller shall otherwise use commercially reasonable
efforts to cooperate with the Purchaser and any parties under the
Pooling and Servicing Agreement in any remedial efforts for which a
Document Defect with respect to such Mortgage File would otherwise cause
a delay.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any serviced Companion Loan that is deposited into another
securitization, the depositor for such other securitization) and the Trustee
with any Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure
set forth next to the Purchaser's name on the schedules pertaining to
information required by Regulation AB attached to the Pooling and Servicing
Agreement, within the time periods set forth in Article XI of the Pooling and
Servicing Agreement.
(f) With respect to any action taken concerning "due-on-sale" or
a "due-on-encumbrance" clause as set forth in Section 3.08(a) of the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related thereto,
including any fee charged by a Rating Agency that is rendering a written
confirmation, to the extent that the related Mortgage Loan documents do not
permit the lender to require payment of such fees and expenses from the
Mortgagor and the Master Servicer or the Special Servicer, as applicable, has
requested that the related Mortgagor pay such fees and expenses and such
Mortgagor refuses to do so, shall be paid by the Seller.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
The Purchaser, as of the Closing Date, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) No consent, approval, authorization or order of, or filing
or registration with, any state or federal court or governmental agency
or body is required for the consummation by the Purchaser of the
transactions contemplated herein, except for those consents, approvals,
authorizations or orders that previously have been obtained and those
filings and registrations that previously have been completed, and
except for those filings of Mortgage Loan documents and assignments
thereof that are contemplated by the Pooling and Servicing Agreement to
be completed after the Closing Date.
(iii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
agreement by the Purchaser, will not violate the Purchaser's certificate
of incorporation or by-laws or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iv) The Purchaser has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(v) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(vi) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement
or the financial condition of the Purchaser.
(vii) No litigation is pending with regard to which the Purchaser
has received service of process or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
(viii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Underwriters and their
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of
any of the transactions contemplated hereby.
SECTION 6. Accountants' Letters.
The parties hereto shall cooperate with Ernst & Young, LLP (the
"Accountants") in making available all information and taking all steps
reasonably necessary to permit the Accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 at 10:00 a.m.,
Charlotte time, on the Closing Date.
The Closing shall be subject to each of the following conditions,
which can only be waived or modified by mutual consent of the parties hereto.
(i) All of the representations and warranties of the Seller and
of the Purchaser specified in Sections 4 and 5 hereof shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 8 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and Seller, shall be duly executed and
delivered by all signatories as required pursuant to the respective
terms thereof;
(iii) The Seller shall have delivered and released to the
Purchaser, the Trustee or a Custodian, or the Master Servicer shall have
received to hold in trust pursuant to the Pooling and Servicing
Agreement, as the case may be, all documents and funds required to be so
delivered pursuant to Sections 2(c), 2(d) and 2(e) hereof;
(iv) The result of any examination of the Mortgage Files and
Servicing Files for the Mortgage Loans performed by or on behalf of the
Purchaser pursuant to Section 3 hereof shall be satisfactory to the
Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied
with, and the Seller shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(vi) The Seller (or an affiliate thereof) shall have paid or
agreed to pay all fees, costs and expenses payable to the Purchaser or
otherwise pursuant to this Agreement; and
(vii) Neither the Certificate Purchase Agreement nor the
Underwriting Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
(a) The Closing Documents shall consist of the following, and can
only be waived and modified by mutual consent of the parties hereto:
(b) This Agreement, duly executed and delivered by the Purchaser
and the Seller, and the Pooling and Servicing Agreement, duly executed and
delivered by the Purchaser and all the other parties thereto; and
(c) An Officer's Certificate executed by an authorized officer of
the Seller, in his or her individual capacity, and dated the Closing Date, upon
which the Underwriters and BACM may rely, attaching thereto as exhibits the
organizational documents of the Seller; and
(d) Certificate of good standing regarding the Seller from the
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; and
(g) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance of the
Certificates; and
(h) Such further certificates, opinions and documents as the
Purchaser may reasonably request; and
(i) The Indemnification Agreement, duly executed by the
respective parties thereto; and
(j) One or more comfort letters from the Accountants dated the
date of any preliminary Prospectus Supplement, Prospectus Supplement and
Memorandum, respectively, and addressed to, and in form and substance acceptable
to the Purchaser and the Underwriters in the case of the preliminary Prospectus
Supplement and the Prospectus Supplement and to the Purchaser and the Initial
Purchasers in the case of the Memorandum stating in effect that, using the
assumptions and methodology used by the Purchaser, all of which shall be
described in such letters, they have recalculated such numbers and percentages
relating to the Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, compared the results
of their calculations to the corresponding items in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
found each such number and percentage set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, to be in
agreement with the results of such calculations.
SECTION 9. Costs.
The parties hereto acknowledge that all costs and expenses
(including the fees of the attorneys) incurred in connection with the
transactions contemplated hereunder (including without limitation, the issuance
of the Certificates as contemplated by the Pooling and Servicing Agreement)
shall be allocated and as set forth in a separate writing between the parties.
SECTION 10. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered to
or mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to Banc of America Commercial Mortgage Inc., 000
Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention:
Xxxxxxx Xxxxx, telecopy number: (000) 000-0000 (with copies to Xxxx X. Xxxxxxx,
Esq., Assistant General Counsel, at Bank of America Corporate Center, 000 Xxxxx
Xxxxx Xxxxxx, 30th Floor, NC1-002-29-01, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and to
Xxxxx X. XxXxxx, Esq., Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), or such other address as may
hereafter be furnished to the Seller in writing by the Purchaser; if to the
Seller, addressed to Bear Xxxxxxx Commercial Mortgage, Inc., addressed to Bear
Xxxxxxx Commercial Mortgage, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage
Department, telecopy number: (000) 000-0000 (with copies to Xxxxxx X. Xxxxxxxxx,
Xx., Managing Director, Legal Department) telecopy number: (000) 000-0000, or to
such other addresses as may hereafter be furnished to the Purchaser by the
Seller in writing.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee.
SECTION 12. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW
YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY
(I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING
IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS
AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 16. Successors and Assigns.
The rights and obligations of the Seller under this Agreement
shall not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. In connection with its transfer of the
Mortgage Loans to the Trust as contemplated by the recitals hereto, the
Purchaser shall have the right to assign its rights and obligations under this
Agreement to the Trustee for the benefit of the Certificateholders. To the
extent of any such assignment, the Trustee or its designee (including, without
limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder
with the right for the benefit of the Certificateholders to enforce the
obligations of the Seller under this Agreement as contemplated by Section 2.03
of the Pooling and Servicing Agreement. In connection with the transfer of any
Mortgage Loan by the Trust as contemplated by the terms of the Pooling and
Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is
expressly authorized to assign its rights and obligations under this Agreement,
in whole or in part, to the transferee of such Mortgage Loan. To the extent of
any such assignment, such transferee shall be deemed to be the Purchaser
hereunder (but solely with respect to such Mortgage Loan that was transferred to
it). Subject to the foregoing, this Agreement shall bind and inure to the
benefit of and be enforceable by the Seller, the Purchaser, and their permitted
successors and assigns.
SECTION 17. Amendments.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by a duly authorized
officer of the party against whom such waiver or modification is sought to be
enforced.
SECTION 18. Intention Regarding Conveyance of Mortgage Loans.
The parties hereto intend that the conveyance by the Seller
agreed to be made hereby shall be, and be construed as a sale by the Seller of
all of the Seller's right, title and interest in and to the Mortgage Loans. It
is, further, not intended that such conveyance be deemed a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller, as the case may be. However, in the event that
notwithstanding the intent of the parties, the Mortgage Loans are held to be
property of the Seller, or if for any reason this Agreement is held or deemed to
create a security interest in the Mortgage Loans, then it is intended that, (i)
this Agreement shall also be deemed to be a security agreement within the
meaning of Article 9 of the New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and (ii) the conveyance
provided for in this Section shall be deemed to be a grant by the Seller to the
Purchaser of a security interest in all of its right (including the power to
convey title thereto), title and interest, whether now owned or hereafter
acquired, in and to (A) the Mortgage Notes, the Mortgages, any related insurance
policies and all other documents in the related Mortgage Files, (B) all amounts
payable to the holders of the Mortgage Loans in accordance with the terms
thereof (other then scheduled payments of interest and principal due on or
before the Cut-off Date) and (C) all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, whether in the form of cash, instruments, securities or other
property. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement and the Pooling and Servicing Agreement. In connection
herewith, the Purchaser shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
SECTION 19. Cross-Collateralized Mortgage Loans.
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that certain groups of Mortgage Loans are, in the case of each such
particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by
their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including without limitation, each of the representations and warranties set
forth in Schedule II hereto and each of the capitalized terms used but not
defined herein but defined in the Pooling and Servicing Agreement, shall be
interpreted in a manner consistent with this Section 19. In addition, if there
exists with respect to any Cross-Collateralized Group only one original of any
document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any
Mortgage Loan that is cross-collateralized and cross-defaulted with one or more
other Mortgage Loans.
SECTION 20. Entire Agreement.
Except as specifically stated otherwise herein, this Agreement
sets forth the entire understanding of the parties relating to the subject
matter hereof, and all prior understandings, written or oral, are superseded by
this Agreement. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 21. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 22. Miscellaneous.
Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise materially adversely affect the Seller without the
consent of the Seller.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC.
By: /s/ Xxxxxxx X. Xxxxxx Xx.
-------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Senior Managing Director
BANC OF AMERICA COMMERCIAL
MORTGAGE INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Loan
Sequence Number Loan Seller Property Name Street Address
-------- ------- --------------- ----------------------------------------- ---------------------------------------
5 45829 BSCMI Chicago Loop Portfolio (Rollup) Various
5.1 45829-1 BSCMI Xxx Xxxxx Xxxxxxxx 0 Xxxxx Xxxxxxxx Xxxxxx
5.2 45829-2 BSCMI Xxx Xxxxx XxXxxxx 0 Xxxxx Xxxxxxx Xxxxxx
5.3 45829-3 BSCMI 000 Xxxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx
0 00000 XXXXX Xxxxxx Center 101 & 000 Xxxxx Xxxxxx
9 47225 BSCMI Xxxxxx Xxxxx & Xxxxxxxxx Xxx Xxxxxx Xxxxx 000 & 000 Xxxx Xxxxxxxxx
16 47888 BSCMI University Courtyard Apartments 0000 Xxxxxxx Xxxxxx
00 00000 XXXXX Xx Quinta Mission Valley 000 Xxxxxx Xxx Xxx Xxxxx
38 47543 BSCMI Xxxxxxxx Field Shopping Center 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx
41 47233 BSCMI Xxxxxxx Xxx Xxxxxxx XXX 0000 Xxxxx Xxxx
42 47805 BSCMI Kettering Towne Center 0000 Xxxx Xxxxxxx Xxxx
57 46856 BSCMI 000 Xxxx Xxxxxxxx 000 Xxxxxxxx Xxxx Xxxx
68 47588 BSCMI Walgreens Easton 0000 Xxxxx Xxxxxxx
70 48058 BSCMI Xxxxx Xxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxxxx
71 47893 BSCMI Walgreens - Decatur 0000 XxXxxxx Xxxx
00 00000 XXXXX Holiday Inn Mammoth 0000 Xxxx Xxxxxx
78 42633 BSCMI Lake Forest Crossing 4100 & 0000 Xxxxx Xxxx Xxxxxx Xxxxx and
5005 & 0000 XxXxxxxx Xxxxx Xxxxxxx
79 47434 BSCMI 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
80 47841 BSCMI Ramada Inn 000 Xxxx Xxxxxx Xxxx
91 46882 BSCMI Boulder Holiday Inn Express 0000 Xxxxx Xxxxxxxx
93 47410 BSCMI Showtime Cinemas 1420 Route 300
99 47606 BSCMI 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx
101 47605 BSCMI 1791 Grand Concourse 1791 Grand Concourse
102 47470 BSCMI 1916 Grand Concourse 1916 Grand Concourse
113 47607 BSCMI 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx
Totals
Remaining
Term To
Cut-off Stated
Zip Mortgage Amortization Original Date Maturity
Sequence City State Code Rate (1) Basis (2) Balance Balance (months)
-------- --------------- ----- ------- -------- ------------ ------------ ------------ --------
5 Chicago IL Various 5.860% Actual/360 $165,000,000 $165,000,000 112
5.1 Xxxxxxx XX 00000 $85,800,000 $85,800,000
5.2 Xxxxxxx XX 00000 $54,600,000 $54,600,000
5.3 Xxxxxxx XX 00000 $24,600,000 $24,600,000
7 Xxx Xxxxxxxxx XX 00000 6.076% Actual/360 $106,000,000 $106,000,000 56
9 King of Prussia PA 19406 5.845% Actual/360 $41,000,000 $40,964,616 119
16 Xxxxxxx XX 00000 5.850% Actual/360 $25,800,000 $25,800,000 120
27 Xxx Xxxxx XX 00000 6.214% Actual/360 $17,450,000 $17,391,895 000
00 Xxxx Xxxxxx XX 00000 5.898% Actual/360 $12,500,000 $12,489,359 119
41 Xxxxxxx XX 00000 6.150% Actual/360 $11,700,000 $11,679,304 118
42 Xxxxxxxxx XX 00000 6.137% Actual/360 $11,175,000 $11,175,000 000
00 Xxxxxxx XX 00000 6.304% Actual/360 $6,862,500 $6,840,153 116
68 Xxxxxx XX 00000 5.750% Actual/360 $5,300,000 $5,300,000 120
70 Xxxx Xxxxx XX 00000 6.153% Actual/360 $5,200,000 $5,200,000 119
71 Xxxxxxx XX 00000 6.115% Actual/360 $5,200,000 $5,200,000 119
76 Xxxxxxx Xxxxx XX 00000 6.027% Actual/360 $4,800,000 $4,796,050 119
78 XxXxxxxx XX 00000 5.000% 30/360 $4,520,000 $4,520,000 55
79 Xxxxxxxxxx XX 00000 6.206% Actual/360 $4,500,000 $4,500,000 000
00 Xxxxxx XX 00000 6.296% Actual/360 $4,500,000 $4,492,300 118
91 Xxxxxxx XX 00000 6.683% Actual/360 $3,750,000 $3,740,935 118
93 Xxxxxxxx XX 00000 6.353% Actual/360 $3,425,000 $3,425,000 57
99 Xxxxx XX 00000 5.880% Actual/360 $3,125,000 $3,125,000 59
000 Xxxxx XX 00000 5.880% Actual/360 $3,050,000 $3,050,000 59
000 Xxxxx XX 00000 5.880% Actual/360 $3,000,000 $3,000,000 59
000 Xxxxx XX 00000 5.880% Actual/360 $1,675,000 $1,675,000 59
$449,364,613
Stated Primary Master Cross- Original
Maturity Due Monthly Administrative Servicing Servicing Ownership Collateralized Amortization
Sequence Date Date Payment Fee Rate (3) Fee Rate Fee Rate Interest Loans (months)
-------- --------- ---- ---------- -------------- --------- --------- ------------- -------------- ------------
5 3/1/2016 1st $974,403 0.031% 0.010% 0.030% Various No 360
5.1 Fee/Leasehold
5.2 Fee
5.3 Fee
7 7/1/2011 1st $544,123 0.031% 0.010% 0.030% Fee No 0
9 10/1/2016 1st $241,745 0.031% 0.010% 0.030% Fee No 360
16 11/1/2016 1st $152,205 0.031% 0.010% 0.030% Fee No 360
27 7/1/2016 1st $107,034 0.031% 0.010% 0.030% Fee No 360
38 10/1/2016 1st $74,126 0.031% 0.010% 0.030% Leasehold No 360
41 9/1/2016 1st $71,280 0.031% 0.010% 0.030% Fee No 360
42 11/1/2016 1st $67,987 0.031% 0.010% 0.030% Fee No 360
57 7/1/2016 1st $42,495 0.031% 0.010% 0.030% Fee No 360
68 11/1/2016 1st $33,343 0.031% 0.010% 0.030% Fee No 300
70 10/1/2016 1st $31,690 0.071% 0.050% 0.070% Fee No 360
71 10/1/2016 1st $26,866 0.031% 0.010% 0.030% Fee No 0
76 10/1/2016 1st $28,862 0.031% 0.010% 0.030% Fee No 360
78 6/1/2011 1st $18,833 0.031% 0.010% 0.030% Fee No 0
79 10/1/2016 1st $27,579 0.031% 0.010% 0.030% Fee No 360
80 9/1/2016 1st $27,842 0.081% 0.060% 0.080% Fee No 360
91 9/1/2016 1st $25,751 0.031% 0.010% 0.030% Fee No 300
93 8/1/2011 1st $22,456 0.031% 0.010% 0.030% Fee No 312
99 10/1/2011 1st $18,496 0.031% 0.010% 0.030% Fee No 360
101 10/1/2011 1st $18,052 0.031% 0.010% 0.030% Fee No 360
102 10/1/2011 1st $17,756 0.031% 0.010% 0.030% Fee No 360
113 10/1/2011 1st $9,914 0.031% 0.010% 0.030% Fee No 360
Sequence ARD Loan Grace Period Loan Group
-------- -------- ------------ ----------
5 No 0 1
5.1 1
5.2 1
5.3 1
7 Xx 0 0
0 Xx 0 0
00 Xx 0 2
27 No 5 1
38 Xx 0 0
00 Xx 0 0
00 Xx 5 1
57 Xx 0 0
00 Xx 0 0
00 Xx 5 1
71 Yes 5 1
76 Xx 0 0
00 Xx 0 0
00 Xx 5 1
80 No 5 1
91 No 5 1
93 Xx 0 0
00 Xx 0 0
000 Xx 5 2
102 No 5 2
113 No 5 2
1) Rates are to full precision in the "BACM2006_6.xls" file located on the
computer disket e attached to the Prospectus Supplement.
2) For mortgage loans which accrue interest on the basis of actual days
elapsed each calendar month and a 360-day year, the amortization term is
the term over which the mortgage loans would amortize if interest accrued
and was paid on the basis of a 360-day year consisting of twelve 30-day
months. The actual amortization would be longer.
3) Administrative Fee Rate includes the rates at which the master servicing
fee (and any sub-servicing fee) and trustee fee accrue.
SCHEDULE II
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of these representations and warranties, the phrases
"to the knowledge of the Seller" or "to the Seller's knowledge" shall mean,
except where otherwise expressly set forth below, the actual state of knowledge
of the Seller or any servicer acting on its behalf regarding the matters
referred to (i) after having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent investment banking
institutions operating commercial mortgage loan securitization conduits with
respect to fixed rate loans originated to be sold through such conduits, 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 only 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
principal use or operation of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's current 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 by the Borrower 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 prudent
investment banking institutions operating commercial mortgage
loan securitization conduits with respect to fixed rate loans
originated to be sold through such conduit 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 actual
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 the Seller's actual knowledge, 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. 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 for the restoration period plus
180 days. If any portion of the improvements on a Mortgaged
Property securing any Mortgage Loan was, at the time of the
origination of such Mortgage Loan, in an area identified in the
Federal Register by the Federal Emergency Management Agency
("FEMA") as a special flood hazard area (Zone A or Zone V) (an
"SFH Area"), and flood insurance was available, 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 an amount not less than $1,000,000 per
occurrence; 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; and 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, Moody's 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 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/or 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 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 October 20, 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 at
origination.
(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 or
greater than 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 the enumerated conditions in the
related Loan Documents for the Loans identified on Schedule
IIA(26), 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 $25,000,000, 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 $25,000,000 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 $25,000,000 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) Servicing, Collection and Origination 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 material respects legal, proper and prudent. The
origination practices used by the Seller and its affiliates with
respect to the Mortgage Loans have been in all material respects
legal, proper and consistent with prudent origination practices
performed by investment banking institutions operating commercial
mortgage loan securitization conduits with respect to fixed rate
loans originated to be sold through such conduits.
(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, in some cases upon request, to
provide the owner or holder of the Mortgage at least annually
with operating statements (or a balance sheet statement of income
and expenses and a statement of changes in financial position)
and, if there is more than one tenant, a rent roll, 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 $25 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 20 years beyond the Stated Maturity
Date for the related Mortgage;
(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 unless the mortgagee under such Mortgage Loan
fails to cure a curable default of the lessee under such
Ground Lease following notice thereof from the lessor;
(i) Under the terms of such Ground Lease and the
related 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; 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 collectibility 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
$101,000,000.
(53) Environmental Insurance Policies. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured
creditor environmental insurance policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has
been disclosed, in the application for such policy
or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy)
identified in any environmental reports related to
such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; and
(ii) has delivered or caused to be delivered
to the insurer under such policy copies of all
environmental reports in the Seller's possession
related to such Mortgaged Property,
in each case with respect to (i) and (ii) to
the extent required by such policy or to the extent
the failure to make any such disclosure or deliver
any such report would materially and adversely
affect the Purchaser's ability to recover under
such policy;
(b) all premiums for such insurance have been paid;
(c) has a term not less than 5 years beyond the term
of the Mortgage Loan (or 5 years beyond the Anticipated
Repayment Date with respect to an ARD Loan) and is not
cancelable during such term; and
(d) such insurance is in full force and effect.
If the Mortgage Loan is listed on Schedule IIA(53)
and the environmental insurance for such Mortgage Loan is
not a secured creditor policy but was required to be
obtained by the Mortgagor, then the holder of the Mortgage
Loan is entitled to be an additional insured under such
policy, all premiums have been paid, such insurance is in
full force and effect, such policy may not be cancelled or
amended without the consent of the Seller or its
successors and assigns and, to the Seller's knowledge, the
Mortgagor has made the disclosures and complied with the
requirements of clauses (a) and (b) of this Paragraph
(53).
(54) Access. The Mortgaged Property is located on or
adjacent to a public road, or has access to an irrevocable
easement permitting ingress and egress.
Schedule IIA to BACM 2006-6 BSCMI MLPA
Exceptions to Representations and Warranties
---------------------------- ---------- --------------------- ----------------------------
REP NO. LOAN NO. LOAN NAME EXPLANATION
------- -------- --------- -----------
---------------------------- ---------- --------------------- ----------------------------
4
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Lien; Valid Assignment 00000 Xxxxxxx Xxxx The related Mortgagor has
Portfolio the right to an additional
funding up to $9,500,000,
provided that it exercises
a purchase option on the
fee interest in 1 X.
Xxxxxxxx on or before
12/31/06. The funding
shall be a pari-passu
"B-Note" subject to an
intercreditor agreement
and shall be securitized
separately.
---------------------------- ---------- --------------------- ----------------------------
9
-
No Holdback 00000 Xxxxxxx Xxxx The related Mortgagor has
Portfolio the right to an additional
funding up to $9,500,000,
provided that it exercises
a purchase option on the
fee interest in 1 X.
Xxxxxxxx on or before
12/31/06. The funding
shall be a pari-passu
"B-Note" subject to an
intercreditor agreement
and shall be securitized
separately.
---------------------------- ---------- --------------------- ----------------------------
10
--
UCC Filings 47410 Showtime Cinemas A security interest in all
personal property
necessary to operate the
property may not have been
granted as such property
may belong to the tenant.
---------------------------- ---------- --------------------- ----------------------------
12
--
Environmental Conditions 00000 Xxxxxx Xxxxx Hotel To mitigate the potential
& Fairfield Inn of environmental
Valley Forge liability, in lieu of an
environmental
indemnification by the
borrower, a Real Estate
Environmental Liability
(REEL) environmental
insurance policy issued by
Steadfast Insurance
Company, a subsidiary of
Zurich, was secured by the
Borrower. There are two
properties covered under
this policy; Crown Plaza
Hotel and the Marriott
Fairfield Inn Valley
Forge. There was no
evidence of Recognized
Environmental Conditions
at the properties. Bear
Xxxxxxx Commercial
Mortgage, Inc. and its
successors and assigns is
named as "additional
insured" on the PLL
Policy. The limit of
liability on this REEL
Policy is $10,000,000,
with a $50,000 deductible.
The REEL Policy will
remain in effect during
the loan term of 10 years.
The REEL Policy and
associated endorsements
were reviewed for accuracy
by an independent
insurance broker on the
behalf of Bear Xxxxxxx
Commercial Mortgage, Inc.
---------------------------- ---------- --------------------- ----------------------------
14
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Insurance 47893 Walgreens - Decatur Property insurance is
provided by the tenant,
Walgreen Co. Walgreen Co.,
an investment grade rated
entity, maintains a
self-insurance program on
the property. Lease is
silent on Business
Interruption coverage. The
tenant, however, is
required under the terms
of the lease to repair or
rebuild following any
casualty, without
abatement of rent.
---------------------------- ---------- --------------------- ----------------------------
23
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Transfers and Subordinate
47888 University Courtyard The Loan allows transfers
of tenant-in-common
interests in the Mortgaged
Property.
47225 Crowne A mezzanine in the amount
Plaza/Fairfield Inn of $2,000,000 is in place.
Such mezzanine loan is
subject to an
intercreditor agreement.
47229 La Quinta Mission The related Mortgagor has
Valley the right to incur future
mezzanine debt, subject
to, among other things, a
70% LTV and 1.35x DSCR.
47841 Ramada Inn The related mortgagor can
incur loans from partners,
provided such debt is (a)
unsecured and
non-transferable, (b)
evidenced only on the
books of the Borrower (and
not by a note) (c) subject
to prior written consent
of Lender and (d) subject
to a full subordination
and standstill agreement
with Lender, if required
in Lender's sole
discretion.
00000 Xxxxxxx Xxxx The related Mortgagor has
Portfolio the right to an additional
funding up to $9,500,000,
provided that it exercises
a purchase option on the
fee interest in 1 X.
Xxxxxxxx on or before
12/31/06. The funding
shall be a pari-passu
"B-Note" subject to an
intercreditor agreement
and shall be securitized
separately.
47233 Holiday Inn Express The Loan allows transfers
BWI of tenant-in-common
interests in the Mortgaged
Property.
---------------------------- ---------- --------------------- ----------------------------
26
--
Releases of Mortgaged 44705 Iron Mountain The Loan provides for
Property release of an individual
property upon partial
defeasance (125%). The
release is subject to
conditions set forth in
the loan documents,
including DSCR and LTV
constraints. See loan
documents for a full
description of release
rights.
00000 Xxxxxxx Xxxx The Loan provides for
Portfolio release of an individual
property upon partial
defeasance (115%). The
release is subject to
conditions set forth in
the loan documents,
including DSCR and LTV
constraints. See loan
documents for a full
description of release
rights.
The Loan further provides
to a partial release of
floors 17-21 of 360 North
Michigan provided that the
property is vertically
subdivided into 2 separate
legal parcels, subject to
Lender's review and
approval of all plans and
specs in connection with
the subdivision, evidence
of continued compliance
with zoning, building
codes and other applicable
law and rating agency
confirmation, if
applicable.
---------------------------- ---------- --------------------- ----------------------------
30
--
Single Purpose entity 47888 University Only the sponsor
Courtyard Apartments tenant-in-common has an
independent director or
member.
---------------------------- ---------- --------------------- ----------------------------
41
--
Non-Recourse Exceptions 42633 Lake Forest Non-recourse provisions go
Crossing to the related Mortgagor
and to Inland Western
Retail Real Estate Trust,
Inc., but not to a
"natural person".
47543 Xxxxxxxx Field Non-recourse provisions go
Shopping Center to the related Mortgagor.
Non-recourse provisions
for environmental matters
and ground lease carveouts
go to Xxxxxxx Xxxxx, but
not his estate.
47556 Xxxxxx Center Non-recourse provisions go
to the related Mortgagor
and to Beacon Capital
Strategic Partners IV,
L.P., but not to a
"natural person".
---------------------------- ---------- --------------------- ----------------------------
44
--
Fee/Leasehold Properties 47543 Xxxxxxxx Field The ground lease does not
Shopping Center provide that it shall
remain prior to any
mortgage or other lien
upon the related fee
interest or require the
fee mortgagee to execute
an SNDA acceptable to
ground lease mortgagee.
However, the ground lease
and/or ground lessor
agreement provide that the
landlord shall not impose
or permit the imposition
of any lien or encumbrance
(including easements and
restrictions imposed by
landlord without the
written consent of tenant)
upon landlord's estate in
the premises except as
required by tenant under
the lease. If any other
lien or encumbrance at any
time encumbers landlord's
estate, then it shall be
landlord's responsibility
to remove it; and landlord
shall, after notice of the
existence thereof, cause
the discharge or removal
of any such lien or
encumbrance as may be the
responsibility of
landlord.
---------------------------- ---------- --------------------- ----------------------------