EX-99 5 bc353030-ex99.txt MORTGAGE LOAN PURCHASE AND SALE AGREEMENT EXHIBIT 99 MORTGAGE LOAN PURCHASE AND SALE AGREEMENT This Mortgage Loan Purchase and Sale Agreement (this "Agreement") is dated and effective as of August 1, 2006, between Bank of America, National Association, as seller (the "Seller" or "Bank of America"), and Banc of America Commercial Mortgage Inc., as purchaser (the "Purchaser" or "BACM"). The Seller desires to sell, assign, transfer and otherwise convey to the Purchaser, and the Purchaser desires to purchase, subject to the terms and conditions set forth below, the multifamily and commercial mortgage loans (the "Mortgage Loans") identified on the schedule annexed hereto as Schedule I (the "Mortgage Loan Schedule") except that the Seller will retain the master servicing rights (the "Servicing Rights") with regard to the Mortgage Loans in its capacity as Master Servicer (as defined below) and shall enter into certain Sub-Servicing Agreements with Sub-Servicers, all as contemplated in the Pooling and Servicing agreement (as defined below). The Purchaser intends to transfer or cause the transfer of the Mortgage Loans 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 Fitch Ratings and/or Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. (together, the "Rating Agencies"). Certain classes of the Certificates (the "Registered Certificates") will be registered under the Securities Act of 1933, as amended (the "Securities Act"). The Trust will be created and the Certificates will be issued pursuant to a pooling and servicing agreement to be dated as of August 1, 2006 (the "Pooling and Servicing Agreement"), among BACM, as depositor, Bank of America, National Association, as master servicer (the "Master Servicer"), LNR Partners, Inc., as special servicer (the "Special Servicer"), and Wells Fargo Bank, N.A., as trustee (in such capacity, the "Trustee") and as REMIC administrator. Capitalized terms used but not otherwise defined herein have the respective meanings assigned to them in the Pooling and Servicing Agreement. BACM intends to sell the Registered Certificates to Banc of America Securities LLC ("BAS") Citigroup Global Markets Inc. ("Citigroup") and Goldman, Sachs & Co. ("Goldman Sachs" and, collectively with BAS and Citigroup the "Underwriters") pursuant to an underwriting agreement, dated as of July 20, 2006 (the "Underwriting Agreement"). BACM intends to place the remaining Classes of Certificates (the "Non-Registered Certificates") through BAS, as placement agent (in such capacity, the "Placement Agent"), pursuant to a private placement agency agreement, dated as of July 20, 2006 (the "Private Placement Agency Agreement"), among BACM and BAS. The Registered Certificates are more fully described in the prospectus dated July 20. 2006 (the "Basic Prospectus"), and the supplement to the Basic Prospectus dated July 20, 2006 (the "Prospectus Supplement"; and, together with the Basic Prospectus, the "Prospectus"), as each may be amended or supplemented at any time hereafter. The privately offered Non-Registered Certificates are more fully described in a private placement memorandum, dated July 20, 2006 (the "Memorandum"), as it may be amended or supplemented at any time hereafter. The Seller will indemnify the Underwriters, the Placement Agent 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 July 20, 2006 (the "Indemnification Agreement"), among the Seller, the Purchaser, the Underwriters and the Placement Agent. Now, therefore, in consideration of the premises and the mutual agreements set forth herein, the parties agree as follows: SECTION 1. Agreement to Purchase. 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 on or after the Cut-off Date and which amount shall be payable on or about August 2, 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). (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 requirements of Section 2(c). 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 national banking association, duly authorized, validly existing and in good standing under the laws of the United States of America. (ii) The execution and delivery of this Agreement by the Seller, and the performance of Seller's obligations under this Agreement, will not violate the Seller's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, which default or breach, in the Seller's good faith and commercially reasonable judgment is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or its financial condition. (iii) The Seller has the full power and authority to enter into and perform its obligations under this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement. (iv) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid, legal and binding obligation of the Seller, enforceable against the Seller in accordance with the terms hereof, subject to (A) applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other laws affecting the enforcement of creditors' rights generally and (B) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law. (v) The Seller is not in violation of, and its execution and delivery of this Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation, in the Seller's good faith and reasonable judgment, is likely to affect materially and adversely either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller. (vi) No litigation is pending with regard to which the Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which if determined adversely to the Seller would prohibit the Seller from entering into this Agreement, or in the Seller's good faith and reasonable judgment, would be likely to materially and adversely affect either the ability of the Seller to perform its obligations under this Agreement or the financial condition of the Seller. (vii) No consent, approval, authorization or order of, or filing or registration with, any state or federal court or governmental agency or body is required for the consummation by the Seller of the transactions contemplated herein, except for those consents, approvals, authorizations and orders that previously have been obtained and those filings and registrations that previously have been completed, and except for those filings and recordings of Mortgage Loan documents and assignments thereof that are contemplated by the Pooling and Servicing Agreement to be completed after the Closing Date. (b) The Seller hereby makes the representations and warranties contained in Schedule II (subject to any exceptions thereto listed on Schedule IIA) to and for the benefit of the Purchaser as of the Closing Date (or as of such other dates specifically provided in the particular representation and warranty), with respect to (and solely with respect to) each Mortgage Loan. (c) Upon discovery of any Material Breach or Material Document Defect, the Purchaser or its designee shall notify the Seller thereof in writing and request that the Seller correct or cure such Material Breach or Material Document Defect. Within 90 days of the earlier of discovery or receipt of written notice by the Seller that there has been a Material Breach or a Material Document Defect (such 90-day period, the "Initial Resolution Period"), the Seller shall (i) cure such Material Breach or Material Document Defect, as the case may be, in all material respects or (ii) repurchase each affected Mortgage Loan or REO Loan (each, a "Defective Mortgage Loan") at the related Purchase Price in accordance with the terms hereof and, if applicable, the terms of the Pooling and Servicing Agreement, with payment to be made in accordance with the reasonable directions of the Purchaser; provided that if the Seller certifies in writing to the Purchaser (i) that, as evidenced by an accompanying Opinion of Counsel, any such Material Breach or Material Document Defect, as the case may be, does not and will not cause the Defective Mortgage Loan, to fail to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (ii) that such Material Breach or Material Document Defect, as the case may be, is capable of being corrected or cured but not within the applicable Initial Resolution Period, (iii) that the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, within the applicable Initial Resolution Period, and (iv) that the Seller anticipates that such Material Breach or Material Document Defect, as the case may be, will be corrected or cured within an additional period not to exceed the Resolution Extension Period (as defined below), then the Seller shall have an additional period equal to the applicable Resolution Extension Period to complete such correction or cure or, failing such, to repurchase the Defective Mortgage Loan; and provided, further, that, if the Seller's obligation to repurchase any Defective Mortgage Loan as a result of a Material Breach or Material Document Defect arises within the three-month period commencing on the Closing Date (or within the two-year period commencing on the Closing Date if the Defective Mortgage Loan is a "defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulations Section 1.860G-2(f)), and if the Defective Mortgage Loan is still subject to the Pooling and Servicing Agreement, the Seller may, at its option, in lieu of repurchasing such Defective Mortgage Loan (but, in any event, no later than such repurchase would have to have been completed), (i) replace such Defective Mortgage Loan with one or more substitute mortgage loans that individually and collectively satisfy the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such substitution and payment to be effected in accordance with the terms of the Pooling and Servicing Agreement. Any such repurchase or replacement of a Defective Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Material Breach or Material Document Defect, but if the Seller discovers a Material Breach or Material Document Defect with respect to a Mortgage Loan, it will notify the Purchaser. For purposes of this Section 4(c), "Resolution Extension Period" shall mean: (i) for purposes of remediating a Material Breach with respect to any Mortgage Loan, the 90-day period following the end of the applicable Initial Resolution Period; (ii) for purposes of remediating a Material Document Defect with respect to any Mortgage Loan that is not a Specially Serviced Loan at the commencement of, and does not become a Specially Serviced Loan during, the applicable Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the earlier of (i) the 90th day following the end of such Initial Resolution Period and (ii) the 45th day following receipt by the Seller of written notice from the Master Servicer or the Special Servicer of the occurrence of any Servicing Transfer Event with respect to such Mortgage Loan subsequent to the end of such Initial Resolution Period; (iii) for purposes of remediating a Material Document Defect with respect to any Mortgage Loan that is a not a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, but as to which a Servicing Transfer Event occurs during such Initial Resolution Period, the period commencing at the end of the applicable Initial Resolution Period and ending on, and including, the 90th day following receipt by the Seller of written notice from the Master Servicer or the Special Servicer of the occurrence of such Servicing Transfer Event; and (iv) for purposes of remediating a Material Document Defect with respect to any Mortgage Loan that is a Specially Serviced Loan as of the commencement of the applicable Initial Resolution Period, zero (-0-) days; provided, however, that if the Seller did not receive written notice from the Master Servicer or the Special Servicer of the relevant Servicing Transfer Event as of the commencement of the applicable Initial Resolution Period, then such Servicing Transfer Event shall be deemed to have occurred during such Initial Resolution Period and the immediately preceding clause (iii) of this definition will be deemed to apply. Notwithstanding the foregoing, the Seller shall have an additional 90 days to cure such Material Document Defect or Material Beach, provided that the Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach and such failure to cure is solely the result of a delay in the return of documents from the local filing or recording authorities. If one or more of the Mortgage Loans constituting a Cross-Collateralized Group are the subject of a Breach or Document Defect, then, for purposes of (i) determining whether such Breach or Document Defect is a Material Breach or Material Document Defect, as the case may be, and (ii) the application of remedies, such Cross-Collateralized Group shall be treated as a single Mortgage Loan. If (x) any Mortgage Loan is required to be repurchased or substituted as contemplated in this Section 4(c), (y) such Mortgage Loan is a Cross-Collateralized Mortgage Loan or part of a portfolio of Mortgaged Properties (that provides that a property may be uncrossed from the other Mortgaged Properties) and (z) the applicable Material Breach or Material Document Defect does not constitute a Material Breach or Material Document Defect, as the case may be, as to any related Cross-Collateralized Mortgage Loan or applies to only specific Mortgaged Properties included in such portfolio (without regard to this paragraph), then the applicable Material Breach or Material Document Defect (as the case may be) will be deemed to constitute a Material Breach or Material Document Defect (as the case may be) as to any related Cross-Collateralized Mortgage Loan and to each other Mortgaged Property included in such portfolio and the Seller shall repurchase or substitute for any related Cross-Collateralized Mortgage Loan in the manner described above unless, in the case of a Material Breach or Material Document Defect, both of the following conditions would be satisfied if the Seller were to repurchase or substitute for only the affected Cross-Collateralized Mortgage Loans or affected Mortgaged Properties as to which a Material Breach or Material Document Defect had occurred without regard to this paragraph: (i) the debt service coverage ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties for the four calendar quarters immediately preceding the repurchase or substitution is not less than the greater of (a) the debt service coverage ratio immediately prior to the repurchase, (b) the debt service coverage ratio on the Closing Date and (c) 1.25x and (ii) the loan-to-value ratio for any remaining Cross-Collateralized Mortgage Loans or Mortgaged Properties is not greater than the lesser of (a) the loan-to-value ratio immediately prior to the repurchase, (b) the loan-to-value ratio on the Closing Date and (c) 75%. In the event that both of the conditions set forth in the preceding sentence would be satisfied, the Seller may elect either to repurchase or substitute for only the affected Cross-Collateralized Mortgage Loan or Mortgaged Properties as to which the Material Breach or Material Document Defect exists or to repurchase or substitute for the aggregate Cross-Collateralized Mortgage Loans or Mortgaged Properties. To the extent that the Seller repurchases or substitutes for an affected Cross-Collateralized Mortgage Loan or Mortgaged Property in the manner prescribed above while the Trustee continues to hold any related Cross-Collateralized Mortgage Loans, the Seller and the Depositor shall either uncross the repurchased Cross-Collateralized Loan or affected Mortgaged Property or, in the case of a Cross-Collateralized Loan, to forbear from enforcing any remedies against the other's Primary Collateral (as defined below), but each is permitted to exercise remedies against the Primary Collateral securing its respective affected Cross-Collateralized Mortgage Loans or Mortgaged Properties, including, with respect to the Trustee, the Primary Collateral securing Mortgage Loans still held by the Trustee, so long as such exercise does not impair the ability of the other party to exercise its remedies against its Primary Collateral. If the exercise of remedies by one party would impair the ability of the other party to exercise its remedies with respect to the Primary Collateral securing the Cross-Collateralized Mortgage Loans or Mortgaged Properties held by such party, then both parties shall forbear from exercising such remedies until the related Mortgage Loan documents can be modified to remove the threat of impairment as a result of the exercise of remedies. "Primary Collateral" shall mean the Mortgaged Property directly securing a Cross-Collateralized Mortgage Loan excluding, however, any Mortgage Property as to which the related lien may only be foreclosed upon by exercise of cross-collateralization of such loans. Whenever one or more mortgage loans are substituted for a Defective Mortgage Loan as contemplated by this Section 4(c), the Seller shall (i) deliver the related Mortgage File for each such substitute mortgage loan to the Purchaser or its designee, (ii) certify that such substitute mortgage loan satisfies or such substitute mortgage loans satisfy, as the case may be, all of the requirements of the definition of "Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing Agreement and (iii) send such certification to the Purchaser or its designee. No mortgage loan may be substituted for a Defective Mortgage Loan as contemplated by this Section 4(c) if the Defective Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which case, absent correction or cure, in all material respects, of the relevant Material Breach or Material Document Defect, the Defective Mortgage Loan will be required to be repurchased as contemplated hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if any) after the related date of substitution, and Monthly Payments due with respect to each Defective Mortgage Loan (if any) after the Cut-off Date (or, in the case of a Replacement Mortgage Loan, after the date on which it is added to the Trust Fund) and on or prior to the related date of repurchase or replacement, shall belong to the Purchaser and its successors and assigns. Monthly Payments due with respect to each Replacement Mortgage Loan (if any) on or prior to the related date of substitution, and Monthly Payments due with respect to each Defective Mortgage Loan (if any) after the related date of repurchase or replacement, shall belong to the Seller. If any Defective Mortgage Loan is to be repurchased or replaced as contemplated by this Section 4, the Seller shall amend the Mortgage Loan Schedule attached to this Agreement to reflect the removal of the Defective Mortgage Loan and, if applicable, the substitution of the related Replacement Mortgage Loan(s) and shall forward such amended schedule to the Purchaser. Except as set forth in Section 4(f), it is understood and agreed that the obligations of the Seller set forth in this Section 4(c) to cure a Material Breach or a Material Document Defect or repurchase or replace the related Defective Mortgage Loan(s), constitute the sole remedies available to the Purchaser with respect to any Breach or Document Defect. It shall be a condition to any repurchase or replacement of a Defective Mortgage Loan by the Seller pursuant to this Section 4(c) that the Purchaser shall have executed and delivered such instruments of transfer or assignment then presented to it by the Seller, in each case without recourse, as shall be necessary to vest in the Seller the legal and beneficial ownership of such Defective Mortgage Loan (including any property acquired in respect thereof or proceeds of any insurance policy with respect thereto), to the extent that such ownership interest was transferred to the Purchaser hereunder. (d) Subject to the specific delivery requirements set forth in the Pooling and Servicing Agreement, if the Seller cannot deliver on the Closing Date any document that is required to be part of the Mortgage File for any Mortgage Loan, then: (i) the Seller shall use diligent, good faith and commercially reasonable efforts from and after the Closing Date to obtain, and deliver to the Purchaser or its designee, all documents missing from such Mortgage File that were required to be delivered by the Seller; (ii) the Seller shall provide the Purchaser with periodic reports regarding its efforts to complete such Mortgage File, such reports to be made on the 90th day following the Closing Date and every 90 days thereafter until the Seller has delivered to the Purchaser or its designee all documents required to be delivered by the Seller as part of such Mortgage File; (iii) upon receipt by the Seller from the Purchaser or its designee of any notice of any remaining deficiencies to such Mortgage File as of August 2, 2006, 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 on the Closing Date; 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 and 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, Wickersham & Taft LLP, 227 West Trade Street, Suite 2400, Charlotte, North Carolina 28202 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 Private Placement Agency Agreement nor the Underwriting Agreement shall have been terminated in accordance with its terms. Both parties agree to use their commercially reasonable best efforts to perform their respective obligations hereunder in a manner that will enable the Purchaser to purchase the Mortgage Loans on the Closing Date. SECTION 8. Closing Documents. (a) The Closing Documents shall consist of the following, and can only be waived and modified by mutual consent of the parties hereto: (b) This Agreement, duly executed and delivered by the Purchaser and the Seller, and the Pooling and Servicing Agreement, duly executed and delivered by the Purchaser and all the other parties thereto; and (c) An Officer's Certificate executed by an authorized officer of the Seller, in his or her individual capacity, and dated the Closing Date, upon which the Underwriters and BACM may rely, attaching thereto as exhibits the organizational documents of the Seller; and (d) Certificate of good standing regarding the Seller from the Comptroller of the Currency, dated not earlier than 30 days prior to the Closing Date; and (e) A certificate of the Seller, executed by an executive officer or authorized signatory of the Seller and dated the Closing Date, and upon which the Purchaser, the Underwriters and the Placement Agent 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 Placement Agent, dated the Closing Date and addressed to the Purchaser, the Underwriters, the Trustee, the Placement Agent and each Rating Agency any other opinions of counsel for the Seller reasonably requested by the Rating Agencies in connection with the issuance of the Certificates; and (g) Any other opinions of counsel for the Seller reasonably requested by the Rating Agencies in connection with the issuance of the Certificates; and (h) Such further certificates, opinions and documents as the Purchaser may reasonably request; and (i) The Indemnification Agreement, duly executed by the respective parties thereto; and (j) One or more comfort letters from the Accountants dated the date of any Free Writing Prospectus, 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 Placement Agent 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., 214 North Tryon Street, NC1-027-22-03, Charlotte, North Carolina 28255, Attention: Stephen Hogue, telecopy number: (704) 386-1094 (with copies to Paul E. Kurzeja, Esq., Assistant General Counsel, at Bank of America Corporate Center, 101 South Tryon Street, 30th Floor, NC1-002-29-01, Charlotte, North Carolina 28255 and to Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Suite 2400, Charlotte, North Carolina 28202), or such other address as may hereafter be furnished to the Seller in writing by the Purchaser; if to the Seller, addressed to Bank of America, National Association, 214 North Tryon Street, NC1-027-22-03, Charlotte, North Carolina 28255, Attention: Stephen Hogue, telecopy number: (704) 386-1094 (with copies to Paul E. Kurzeja, Esq., Assistant General Counsel, at Bank of America Corporate Center, 101 South Tryon Street, 30th Floor, NC1-002-29-01, Charlotte, North Carolina 28255 and to Henry A. LaBrun, Esq., Cadwalader, Wickersham & Taft LLP, 227 West Trade Street, Suite 2400, Charlotte, North Carolina 28202) or to such other addresses as may hereafter be furnished to the Purchaser by the Seller in writing. SECTION 11. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement, incorporated herein by reference or contained in the certificates of officers of the Seller submitted pursuant hereto, shall remain operative and in full force and effect and shall survive delivery of the Mortgage Loans by the Seller to the Purchaser or, at the direction of the Purchaser, to the Trustee. SECTION 12. Severability of Provisions. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or which is held to be void or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any part, provision, representation, warranty or covenant of this Agreement that is prohibited or unenforceable or is held to be void or unenforceable in any particular jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the parties hereto waive any provision of law which prohibits or renders void or unenforceable any provision hereof. SECTION 13. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES (OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW, PURSUANT TO WHICH THE PARTIES HERETO HAVE CHOSEN THE LAWS OF THE STATE OF NEW YORK AS THE GOVERNING LAW OF THIS AGREEMENT). TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. SECTION 15. Further Assurances. The Seller and the Purchaser agree to execute and deliver such instruments and take such further actions as the other party may, from time to time, reasonably request in order to effectuate the purposes and to carry out the terms of this Agreement. SECTION 16. Successors and Assigns. The rights and obligations of the Seller under this Agreement shall not be assigned by the Seller without the prior written consent of the Purchaser, except that any person into which the Seller may be merged or consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Seller is a party, or any person succeeding to all or substantially all of the business of the Seller, shall be the successor to the Seller hereunder. In connection with its transfer of the Mortgage Loans to the Trust as contemplated by the recitals hereto, the Purchaser shall have the right to assign its rights and obligations under this Agreement to the Trustee for the benefit of the Certificateholders. To the extent of any such assignment, the Trustee or its designee (including, without limitation, the Special Servicer) shall be deemed to be the Purchaser hereunder with the right for the benefit of the Certificateholders to enforce the obligations of the Seller under this Agreement as contemplated by Section 2.03 of the Pooling and Servicing Agreement. In connection with the transfer of any Mortgage Loan by the Trust as contemplated by the terms of the Pooling and Servicing Agreement, the Trustee, for the benefit of the Certificateholders, is expressly authorized to assign its rights and obligations under this Agreement, in whole or in part, to the transferee of such Mortgage Loan. To the extent of any such assignment, such transferee shall be deemed to be the Purchaser hereunder (but solely with respect to such Mortgage Loan that was transferred to it). Subject to the foregoing, this Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser, and their permitted successors and assigns. SECTION 17. Amendments. No term or provision of this Agreement may be waived or modified unless such waiver or modification is in writing and signed by a duly authorized officer of the party against whom such waiver or modification is sought to be enforced. SECTION 18. Intention Regarding Conveyance of Mortgage Loans. The parties hereto intend that the conveyance by the Seller agreed to be made hereby shall be, and be construed as a sale by the Seller of all of the Seller's right, title and interest in and to the Mortgage Loans. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other obligation of the Seller, as the case may be. However, in the event that notwithstanding the intent of the parties, the Mortgage Loans are held to be property of the Seller, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (i) this Agreement shall also be deemed to be a security agreement within the meaning of Article 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; and (ii) the conveyance provided for in this Section shall be deemed to be a grant by the Seller to the Purchaser of a security interest in all of its right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof (other then scheduled payments of interest and principal due on or before the Cut-off Date) and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, whether in the form of cash, instruments, securities or other property. The Seller and the Purchaser shall, to the extent consistent with this Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement and the Pooling and Servicing Agreement. In connection herewith, the Purchaser shall have all of the rights and remedies of a secured party and creditor under the Uniform Commercial Code as in force in the relevant jurisdiction. SECTION 19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein to the contrary, it is hereby acknowledged that certain groups of Mortgage Loans are, in the case of each such particular group of Mortgage Loan (each a "Cross-Collateralized Group"), by their terms, cross-defaulted and cross-collateralized. Each Cross-Collateralized Group is identified on the Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that relates or corresponds to any of the Mortgage Loans referred to in this Section 19 shall be the property identified in the Mortgage Loan Schedule as corresponding thereto. The provisions of this Agreement, including without limitation, each of the representations and warranties set forth in Schedule II hereto and each of the capitalized terms used but not defined herein but defined in the Pooling and Servicing Agreement, shall be interpreted in a manner consistent with this Section 19. In addition, if there exists with respect to any Cross-Collateralized Group only one original of any document referred to in the definition of "Mortgage File" in the Pooling and Servicing Agreement and covering all the Mortgage Loans in such Cross-Collateralized Group, then the inclusion of the original of such document in the Mortgage File for any of the Mortgage Loans in such Cross-Collateralized Group shall be deemed an inclusion of such original in the Mortgage File for each such Mortgage Loan. "Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan that is cross-collateralized and cross-defaulted with one or more other Mortgage Loans. SECTION 20. Entire Agreement. Except as specifically stated otherwise herein, this Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement. This Agreement may not be modified, amended, waived or supplemented except as provided herein. SECTION 21. Matters Relating to Certain Mortgage Loans. The Seller acknowledges that, with respect to the Mortgage Loan identified as Loan No. 16340 in the Mortgage Loan Schedule and referred to as "Columbia Bank Building (WA)", the cost of such Rating Agency Confirmation with respect to the termination of the "Parking Easement", if not paid for by the related Borrower, shall be paid by the Mortgage Loan Seller. SECTION 22. 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 23. 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. BANK OF AMERICA, NATIONAL ASSOCIATION By: /s/ Stephen L. Hogue -------------------------------- Name: Stephen L. Hogue Title: Principal BANC OF AMERICA COMMERCIAL MORTGAGE INC. By: /s/ John S. Palmer -------------------------------- Name: John S. Palmer Title: Vice President SCHEDULE I MORTGAGE LOAN SCHEDULE
Sequence Loan Number Loan Seller Property Name -------- ----------- ----------- ------------- 1 3400190 Bank of America Bowen Building 2 59124 Bank of America Saugus Colony 3 3401551 Bank of America Herald Center 4 3219703 Bank of America Southern Hills Mall 5 3401226 Bank of America One Stamford Forum 6 59799 Bank of America Republic Place 7 3219702 Bank of America Rushmore Mall 8 59458 Bank of America FBI Regional HQ Building 9 3400144 Bank of America One Campus Drive 10 3400086 Bank of America Phoenix Airport Marriott 11 59643 Bank of America Downey Landing 12 3400064 Bank of America Minneapolis Airport Marriott 13 59770 Bank of America Fifth Third Center - Columbus, OH 14 3400163 Bank of America Sherman Plaza 15 3400274 Bank of America Hedwig Village 16 59665 Bank of America Fair Lakes Promenade 17.1 59743 Bank of America Gateway Academy - 7131 Market Street 17.2 59743 Bank of America Gateway Academy - 14325 Ballantyne Meadows Drive 17.3 59743 Bank of America Gateway Academy - 8010 Strawberry Lane 17.4 59743 Bank of America Gateway Academy - 3200 McKee Road 17.5 59743 Bank of America Gateway Academy - 6768 West Ottawa Avenue 17.6 59743 Bank of America Gateway Academy - 5637 South Himalaya Street 17.7 59743 Bank of America Gateway Academy - 9064 East Mineral Circle 17.8 59743 Bank of America Gateway Academy - 900 East First Street 17.9 59743 Bank of America Gateway Academy - 12633 West Indore Place 17.1 59743 Bank of America Gateway Academy - 2401 Discovery Lane 17.11 59743 Bank of America Gateway Academy - 109 West Perry Road 17.12 59743 Bank of America Gateway Academy - 8596 Pelham Road 17.13 59743 Bank of America Gateway Academy - 5307 Sunset Boulevard 17.14 59743 Bank of America Gateway Academy - 950 Columbiana Drive 17.15 59743 Bank of America Gateway Academy - 1540 Old Trolley Road 17.16 59743 Bank of America Gateway Academy - 1966 Magwood Drive 17.17 59743 Bank of America Gateway Academy - 891 Johnnie Dodds Boulevard 17.18 59743 Bank of America Gateway Academy - 798 East Butler Road 17.19 59743 Bank of America Gateway Academy - 1130 Sparkleberry Lane Extension 17 59743 Bank of America Gateway Academy Centers (Rollup) 18 59817 Bank of America Cathedral City Marketplace 19 3400323 Bank of America San Rafael Autodesk 20 3401265 Bank of America Greenway Village Apartments 21 3401474 Bank of America South Bank 22 3401394 Bank of America Boscov's Monroeville Mall 23 3401628 Bank of America 2165 Francisco Blvd 24 3401398 Bank of America Boscov's South Hills Village 25 59663 Bank of America Fairfax Retail 26 59728 Bank of America Uptown Center 27 3401393 Bank of America Boscov's Marley Station 28 3401399 Bank of America Boscov's White Marsh 29 3401396 Bank of America Boscov's Owings Mills 30 59512 Bank of America Brittany Woods Apartments 31 3401391 Bank of America Boscov's Deptford Mall 32 3400011 Bank of America MJ Murdock 33 3402023 Bank of America Murdock Retail & Theater Center Subtotal Crossed Loans 34 3400009 Bank of America 2856-2860 Steinway Street 35 3401397 Bank of America Boscov's Oxford Valley Mall 36 3401395 Bank of America Boscov's Montgomery Mall 37 59764 Bank of America Centennial Plaza 38 59625 Bank of America Leamington Building 39.1 3400299 Bank of America New Hampshire Retail Portfolio - Shaw's Lancaster 39.2 3400299 Bank of America New Hampshire Retail Portfolio - Shaw's Woodsville 39.3 3400299 Bank of America New Hampshire Retail Portfolio - Kilburn Ledge 39 3400299 Bank of America New Hampshire Retail Portfolio (Rollup) 40 3400289 Bank of America Cedar Hill Pointe 41 59660 Bank of America Tenaya Village Center 42 59612 Bank of America Baylor Medical Plaza 43 3400057 Bank of America Signature Self Storage 44 59610 Bank of America Best Western Laguna Brisas 45 16340 Bank of America Columbia Bank Building (WA) 46 15843 Bank of America Sierra Vista Square Apartments 47 59662 Bank of America The Shops at Fair Lakes 48 17815 Bank of America River Manor 49 59450 Bank of America Hilton Garden Inn 50 3401225 Bank of America London Park Apartments 51 3401439 Bank of America Venice & Western Retail 52 3400287 Bank of America Ladera Ranch Self Storage 53 59761 Bank of America DEA Warehouse/Tech Ops Building 54 17402 Bank of America Bank of America Building 55.1 59508 Bank of America RCC Office Portfolio - Park Forest Building 55.2 59508 Bank of America RCC Office Portfolio - Colleyville Square 55 59508 Bank of America RCC Office Portfolio (Rollup) 56 59806 Bank of America Sundance Plaza 57 13732 Bank of America Milrand Retail 58 3400133 Bank of America Adolfo Self Storage 59 3401203 Bank of America Cedar Ridge Apartments 60 59797 Bank of America Raley's Newark 61 59800 Bank of America Barnett Center 62 18486 Bank of America Hampton Inn Hotel & Suites - Idaho Center 63 59630 Bank of America Windsor Townhomes 64 59769 Bank of America Eagle River Hilton Garden Inn 65 18227 Bank of America U-Store America 66 3400285 Bank of America Business Exchange Building 67 59808 Bank of America Yorba Canyon Center 68 59762 Bank of America West Trop Storage 69 59815 Bank of America Empire Terrace Apts 70 3400291 Bank of America Green Acres Mini Storage 71 59809 Bank of America Henry's Farmers Market 72 59198 Bank of America Walgreens - 56th and Pacific 73 59793 Bank of America Temple Street Garage 74 18075 Bank of America Comfort Suites-St. Augustine 75.1 17366 Bank of America Holcomb Street Properties - Lowell Rd 75.2 17366 Bank of America Holcomb Street Properties - Josie St 75.3 17366 Bank of America Holcomb Street Properties - Daniel St 75 17366 Bank of America Holcomb Street Properties (Rollup) 76 59398 Bank of America Lockers Self Storage 77 3400229 Bank of America Nottingham Village 78 17595 Bank of America Westown Gardens Apartments 79 59707 Bank of America 88 Willett Street 80 59798 Bank of America Garland Firewheel 81 3400039 Bank of America Melrose Garden Apartments 82 17391 Bank of America Heisman Square 83 16992 Bank of America Sandpiper Apartments 84 16369 Bank of America Coastal Mini Storage - Morehead City 85 59784 Bank of America Securlock at Vista Ridge 86 18188 Bank of America Mayflower Apartments 87 59795 Bank of America Country Club Apartments 88 59791 Bank of America Eagle River Office Building III 89 3220308 Bank of America RVS Chickasaw 90 18046 Bank of America Shoppes at Red Bug 91 17596 Bank of America Queensdale Apartments 92 18509 Bank of America Maxwell Mini-Storage 93 17958 Bank of America CGL Enterprises 94 59765 Bank of America Flamingo Sandhill 95 59710 Bank of America A to Z Mini Storage 96 59802 Bank of America McFadden Plaza Totals Sequence Street Address City State Zip Code Mortgage Rate (1) -------- -------------- ---- ----- -------- ----------------- 1 875 15th Street, NW Washington DC 20005 6.138% 2 17621 West Pauline Court Santa Clarita CA 91387 4.947% 3 1311 Broadway New York NY 10001 6.058% 4 4400 Sergeant Road Sioux City IA 51106 5.794% 5 201 Tresser Boulevard Stamford CT 06901 6.373% 6 1776 Eye Street, NW Washington DC 20006 5.940% 7 2200 North Maple Avenue Rapid City SD 57701 5.794% 8 2111 West Roosevelt Road Chicago IL 60608 5.490% 9 One Campus Drive Parsippany NJ 07054 6.151% 10 1101 North 44th Street Phoenix AZ 85008 6.293% 11 12000 - 12160 Lakewood Boulevard Downey CA 90242 5.496% 12 2020 American Boulevard East Bloomington MN 55425 6.363% 13 21 East State Street Columbus OH 43215 6.087% 14 15350 & 15400 Sherman Way Van Nuys CA 91406 5.945% 15 9401-9453 Katy Freeway Houston TX 77024 6.004% 16 12189-12249 Fair Lakes Promenade Fairfax VA 22033 5.576% 17.1 7131 Market Street Wilmington NC 28411 17.2 14325 Ballantyne Meadows Drive Charlotte NC 28277 17.3 8010 Strawberry Lane Charlotte NC 28277 17.4 3200 McKee Road Charlotte NC 28270 17.5 6768 West Ottawa Avenue Littleton CO 80128 17.6 5637 South Himalaya Street Aurora CO 80015 17.7 9064 East Mineral Circle Centennial CO 80112 17.8 900 East First Avenue Broomfield CO 80020 17.9 12633 West Indore Place Littleton CO 80127 17.1 2401 Discovery Lane Surfside Beach SC 29575 17.11 109 West Perry Road Myrtle Beach SC 29579 17.12 8596 Pelham Road Greenville SC 29615 17.13 5307 Sunset Boulevard Lexington SC 29072 17.14 950 Columbiana Drive Columbia SC 29212 17.15 1540 Old Trolley Road Summerville SC 29485 17.16 1966 Magwood Drive Charleston SC 29414 17.17 891 Johnnie Dodds Boulevard Mount Pleasant SC 29464 17.18 798 East Butler Road Mauldin SC 29662 17.19 1130 Sparkleberry Lane Extension Columbia SC 29223 17 Various Various Various Various 6.607% 18 34021-34491 Date Palm Drive Cathedral City CA 92234 5.715% 19 111 McInnis Parkway San Rafael CA 94903 5.897% 20 8230 Greenway Village Drive Charlotte NC 28269 5.990% 21 111 West Crockett Street San Antonio TX 78205 5.910% 22 200 Monroeville Mall Monroeville PA 15146 6.460% 23 2165-2175 Francisco Boulevard East San Rafael CA 94901 6.124% 24 301 South Hills Village Upper St. Clair PA 15241 6.460% 25 12993, 12995 & 12997 Fair Lakes Shopping Center Fairfax VA 22033 5.576% 26 2626 Howell Street Dallas TX 75204 5.673% 27 7900 Ritchie Highway Glen Burnie MD 21061 6.460% 28 8200 Perry Hall Boulevard Nottingham MD 21236 6.460% 29 10300 Mill Run Circle Owings Mills MD 21117 6.460% 30 759 Burr Oak Lane University Park IL 60466 5.567% 31 1750 Deptford Center Road Woodbury NJ 08096 6.460% 32 703 Broadway Street Vancouver WA 98660 6.135% 33 801 C Street Vancouver WA 98660 6.255% 34 2856-2860 Steinway Street Astoria NY 11103 6.055% 35 2300 East Lincoln Highway Langhorne PA 19047 6.380% 36 500 Montgomery Mall Boulevard North Wales PA 19454 6.380% 37 2745 West Centennial Parkway North Las Vegas NV 89084 5.852% 38 1814 Franklin Street Oakland CA 94612 6.032% 39.1 199 Main Street Lancaster NH 03584 39.2 15 Forest Street & 4976 Dartmouth College Highway Woodsville NH 03785 39.3 804 Meadow Street Littleton NH 03561 39 Various Various NH Various 6.257% 40 971 North Highway 67 Cedar Hill TX 75104 5.682% 41 7220, 7240, 7260, 7280 & 7290 West Azure Drive Las Vegas NV 89130 5.543% 42 7150 President George Bush Turnpike Garland TX 75044 5.701% 43 1279 (Kemah) & 1289 (Signature) FM 518 Road Kemah TX 77565 6.199% 44 1600 South Coast Highway Laguna Beach CA 92651 6.329% 45 1102 Broadway Tacoma WA 98402 6.292% 46 920 Sierra Vista Drive Las Vegas NV 89109 5.245% 47 12701-12735 Shoppes Lane Fairfax VA 22033 5.576% 48 3800 River Valley Drive Flint MI 48532 5.703% 49 4900 Emerald Court Southwest Cleveland OH 44135 6.064% 50 15889 Preston Road Dallas TX 75248 5.846% 51 1535, 1545, 1555 & 1565 South Western Avenue Los Angeles CA 90006 5.724% 52 30 Terrace Road Ladera Ranch CA 92694 5.839% 53 8909 San Dario Laredo TX 78045 5.984% 54 4625 Lindell Boulevard St. Louis MO 63108 6.383% 55.1 4201 West Parmer Lane Austin TX 78727 55.2 6203 Colleyville Boulevard Colleyville TX 76034 55 Various Various TX Various 5.710% 56 1621-1661 East Sunset Road Las Vegas NV 89119 6.005% 57 2255-2283 Randall Road Carpentersville IL 60110 5.393% 58 4060 Via Pescador Camarillo CA 93012 6.155% 59 2900 West Baker Road Baytown TX 77521 6.264% 60 6399 Jarvis Avenue Newark CA 94560 5.587% 61 4250 Pacific Highway San Diego CA 92110 6.016% 62 5750 East Franklin Road Nampa ID 83687 6.555% 63 6699 Amora Drive Berkeley MO 63134 5.697% 64 145 East Riverside Drive Eagle ID 83616 5.688% 65 998 Washington Boulevard Roseville CA 95678 6.398% 66 200 Northeast Missouri Drive Lee's Summit MO 64086 6.304% 67 21430, 21440, 21450 & 21530 Yorba Linda Boulevard Yorba Linda CA 92887 5.873% 68 9645 West Tropicana Avenue Las Vegas NV 89147 5.950% 69 12825 60th Lane South Seattle WA 98178 5.720% 70 95 Green Acres Drive Reno NV 89511 6.263% 71 27765 Santa Margarita Parkway Mission Viejo CA 92691 5.907% 72 5602 Pacific Avenue Tacoma WA 98408 5.220% 73 11 Temple Street Portland ME 04101 6.260% 74 42 San Marco Avenue St. Augustine FL 32084 6.342% 75.1 1705 North Lowell Road Springdale AR 72764 75.2 100-209 Josie Drive Springdale AR 72764 75.3 500-598 Daniel Place Springdale AR 72764 75 Various Springdale AR 72764 6.120% 76 6800 North Military Trail Riviera Beach FL 33407 5.893% 77 960 South Fry Road Katy TX 77450 6.167% 78 27243 Westown Boulevard Westlake OH 44145 6.007% 79 88 Willett Street Albany NY 12210 5.896% 80 5129 North Garland Avenue Garland TX 75040 6.167% 81 18881 Mora Kai Lane Huntington Beach CA 92646 6.032% 82 1209-1331 East Alameda Street Norman OK 73071 5.990% 83 741 Barcelona Court Birmingham AL 35209 5.659% 84 1140 Highway 24 Newport NC 28570 6.161% 85 391 East Round Grove Road Lewisville TX 75067 6.316% 86 425 West Ormsby Avenue Louisville KY 40203 6.448% 87 1700 East Tabor Avenue Fairfield CA 94533 5.895% 88 500 East Shore Drive Eagle ID 83616 5.802% 89 275 South Chickasaw Trail Orlando FL 32825 6.437% 90 7505 Red Bug Lake Road Oviedo FL 32765 6.123% 91 7191 Mentor Avenue Mentor OH 44060 6.007% 92 312 Air Base Boulevard Montgomery AL 36108 6.568% 93 5821 Farrington Road Durham NC 27517 6.446% 94 3805 East Flamingo Road Las Vegas NV 89121 5.934% 95 7523 N.E. Highway 99 Vancouver WA 98665 6.267% 96 10524-10572 McFadden Avenue & 15532 Ward Street Garden Grove CA 92843 6.178% Sequence Amortization Basis (2) Original Balance Cut-off Date Balance -------- ---------------------- ---------------- -------------------- 1 Actual/360 $115,021,987 $115,021,987 2 Actual/360 $115,000,000 $115,000,000 3 Actual/360 $110,000,000 $110,000,000 4 Actual/360 $101,500,000 $101,500,000 5 Actual/360 $100,000,000 $99,883,426 6 Actual/360 $96,000,000 $96,000,000 7 Actual/360 $94,000,000 $94,000,000 8 Actual/360 $90,000,000 $89,815,875 9 Actual/360 $80,000,000 $80,000,000 10 Actual/360 $71,025,000 $70,903,384 11 Actual/360 $68,500,000 $68,500,000 12 Actual/360 $68,100,000 $67,985,249 13 Actual/360 $52,500,000 $52,500,000 14 Actual/360 $40,200,000 $40,200,000 15 Actual/360 $33,900,000 $33,900,000 16 Actual/360 $31,635,531 $31,635,531 17.1 $2,312,000 $2,306,678 17.2 $2,304,000 $2,298,696 17.3 $2,304,000 $2,298,696 17.4 $2,224,000 $2,218,880 17.5 $1,580,000 $1,576,363 17.6 $1,580,000 $1,576,363 17.7 $1,580,000 $1,576,363 17.8 $1,560,000 $1,556,409 17.9 $1,560,000 $1,556,409 17.1 $1,448,000 $1,444,667 17.11 $1,448,000 $1,444,667 17.12 $1,448,000 $1,444,667 17.13 $1,440,000 $1,436,685 17.14 $1,440,000 $1,436,685 17.15 $1,440,000 $1,436,685 17.16 $1,440,000 $1,436,685 17.17 $1,440,000 $1,436,685 17.18 $1,440,000 $1,436,685 17.19 $1,440,000 $1,436,685 17 Actual/360 $31,428,000 $31,355,653 18 30/360 $25,250,000 $25,250,000 19 Actual/360 $21,000,000 $20,960,690 20 Actual/360 $20,917,000 $20,917,000 21 Actual/360 $20,000,000 $20,000,000 22 Actual/360 $19,754,950 $19,722,399 23 Actual/360 $19,500,000 $19,484,361 24 Actual/360 $19,369,780 $19,337,863 25 Actual/360 $18,688,203 $18,688,203 26 Actual/360 $18,631,926 $18,631,926 27 Actual/360 $17,490,919 $17,462,098 28 Actual/360 $17,374,191 $17,345,563 29 Actual/360 $17,263,258 $17,234,812 30 Actual/360 $16,250,000 $16,250,000 31 Actual/360 $16,116,794 $16,090,238 32 Actual/360 $8,840,000 $8,840,000 33 Actual/360 $6,160,000 $6,160,000 $15,000,000 $15,000,000 34 Actual/360 $14,700,000 $14,700,000 35 Actual/360 $14,438,450 $14,414,216 36 Actual/360 $14,341,855 $14,317,783 37 Actual/360 $13,705,000 $13,705,000 38 Actual/360 $12,500,000 $12,500,000 39.1 $4,455,212 $4,455,212 39.2 $4,326,233 $4,326,233 39.3 $3,613,555 $3,613,555 39 Actual/360 $12,395,000 $12,395,000 40 Actual/360 $10,750,000 $10,750,000 41 Actual/360 $9,850,000 $9,850,000 42 Actual/360 $9,240,000 $9,240,000 43 Actual/360 $9,240,000 $9,240,000 44 Actual/360 $9,184,166 $9,161,526 45 Actual/360 $9,000,000 $9,000,000 46 Actual/360 $8,550,000 $8,454,940 47 Actual/360 $8,443,840 $8,443,840 48 Actual/360 $7,700,000 $7,700,000 49 Actual/360 $7,661,246 $7,633,470 50 Actual/360 $7,500,000 $7,500,000 51 Actual/360 $7,500,000 $7,500,000 52 Actual/360 $7,500,000 $7,485,779 53 Actual/360 $7,250,000 $7,250,000 54 Actual/360 $7,090,000 $7,090,000 55.1 $6,453,568 $6,453,568 55.2 $569,432 $569,432 55 Actual/360 $7,023,000 $7,023,000 56 Actual/360 $7,000,000 $6,981,355 57 Actual/360 $6,650,000 $6,650,000 58 Actual/360 $6,500,000 $6,500,000 59 Actual/360 $6,166,000 $6,166,000 60 Actual/360 $6,150,000 $6,150,000 61 Actual/360 $6,050,000 $6,050,000 62 Actual/360 $5,950,000 $5,940,410 63 Actual/360 $5,680,000 $5,680,000 64 Actual/360 $5,500,000 $5,500,000 65 Actual/360 $5,390,000 $5,390,000 66 Actual/360 $5,250,000 $5,250,000 67 Actual/360 $5,100,000 $5,100,000 68 Actual/360 $5,000,000 $5,000,000 69 Actual/360 $4,775,000 $4,775,000 70 Actual/360 $4,750,000 $4,741,811 71 Actual/360 $4,700,000 $4,700,000 72 Actual/360 $4,600,000 $4,553,423 73 Actual/360 $4,491,995 $4,477,388 74 Actual/360 $4,400,000 $4,392,550 75.1 $2,875,248 $2,867,795 75.2 $771,408 $769,408 75.3 $736,344 $734,435 75 Actual/360 $4,383,000 $4,371,639 76 Actual/360 $4,100,000 $4,100,000 77 Actual/360 $4,020,000 $4,012,917 78 Actual/360 $4,000,000 $4,000,000 79 Actual/360 $3,850,000 $3,850,000 80 Actual/360 $3,800,000 $3,800,000 81 Actual/360 $3,700,000 $3,696,959 82 Actual/360 $3,608,600 $3,608,600 83 Actual/360 $3,347,225 $3,337,314 84 Actual/360 $2,984,000 $2,978,735 85 Actual/360 $2,927,041 $2,927,041 86 Actual/360 $2,700,000 $2,695,539 87 Actual/360 $2,550,000 $2,545,225 88 Actual/360 $2,500,000 $2,500,000 89 Actual/360 $2,500,000 $2,498,159 90 Actual/360 $2,415,000 $2,408,745 91 Actual/360 $2,200,000 $2,200,000 92 Actual/360 $2,065,000 $2,061,682 93 Actual/360 $2,065,000 $2,061,586 94 Actual/360 $1,864,000 $1,864,000 95 Actual/360 $1,850,000 $1,845,371 96 Actual/360 $1,454,551 $1,454,551 $1,964,746,808 Sequence Remaining Term To Stated Maturity (months) Stated Maturity Date Due Date Monthly Payment -------- ------------------------------------------ -------------------- -------- --------------- 1 118 6/1/2016 1st $596,533 2 52 12/1/2010 1st $480,672 3 118 6/1/2016 1st $663,578 4 118 6/1/2016 1st $496,882 5 119 7/1/2016 1st $665,575 6 116 4/1/2016 1st $571,871 7 118 6/1/2016 1st $460,167 8 118 6/1/2016 1st $510,457 9 117 5/1/2016 1st $415,728 10 118 6/1/2016 1st $439,301 11 118 6/1/2016 1st $318,087 12 118 6/1/2016 1st $424,321 13 119 7/1/2016 1st $317,690 14 119 7/1/2016 1st $239,600 15 118 6/1/2016 1st $171,969 16 116 4/1/2016 1st $181,134 17.1 17.2 17.3 17.4 17.5 17.6 17.7 17.8 17.9 17.1 17.11 17.12 17.13 17.14 17.15 17.16 17.17 17.18 17.19 17 117 5/1/2016 1st $200,863 18 117 5/1/2016 1st $120,253 19 118 6/1/2016 1st $124,518 20 118 6/1/2016 1st $125,274 21 118 6/1/2016 1st $99,868 22 118 6/1/2016 1st $124,346 23 119 7/1/2016 1st $118,471 24 118 6/1/2016 1st $121,921 25 116 4/1/2016 1st $107,002 26 116 4/1/2016 1st $107,821 27 118 6/1/2016 1st $110,095 28 118 6/1/2016 1st $109,360 29 118 6/1/2016 1st $108,662 30 113 1/1/2016 1st $92,950 31 118 6/1/2016 1st $101,446 32 119 7/1/2016 1st $53,770 33 119 7/1/2016 1st $37,948 34 117 5/1/2016 1st $75,204 35 118 6/1/2016 1st $90,124 36 118 6/1/2016 1st $89,521 37 119 7/1/2016 1st $80,869 38 117 5/1/2016 1st $75,201 39.1 39.2 39.3 39 118 6/1/2016 1st $76,375 40 118 6/1/2016 1st $62,270 41 117 5/1/2016 1st $56,193 42 77 1/1/2013 1st $53,635 43 118 6/1/2016 1st $56,586 44 117 5/1/2016 1st $57,021 45 120 8/1/2016 1st $55,661 46 110 10/1/2015 1st $47,187 47 116 4/1/2016 1st $48,347 48 114 2/1/2016 1st $44,705 49 116 4/1/2016 1st $46,249 50 117 5/1/2016 1st $44,226 51 118 6/1/2016 1st $36,272 52 118 6/1/2016 1st $44,193 53 106 6/1/2015 1st $36,655 54 119 7/1/2016 1st $44,269 55.1 55.2 55 113 1/1/2016 1st $40,806 56 117 5/1/2016 1st $41,991 57 108 8/1/2015 1st $37,313 58 119 7/1/2016 1st $39,621 59 119 7/1/2016 1st $38,021 60 109 9/1/2015 1st $35,255 61 118 6/1/2016 1st $36,335 62 118 6/1/2016 1st $37,824 63 117 5/1/2016 1st $32,956 64 116 4/1/2016 1st $31,880 65 118 6/1/2016 1st $33,708 66 83 7/1/2013 1st $32,510 67 119 7/1/2016 1st $30,162 68 117 5/1/2016 1st $29,817 69 117 5/1/2016 1st $27,775 70 118 6/1/2016 1st $29,287 71 118 6/1/2016 1st $27,898 72 111 11/1/2015 1st $25,316 73 117 5/1/2016 1st $28,797 74 118 6/1/2016 1st $27,355 75.1 75.2 75.3 75 117 5/1/2016 1st $26,617 76 117 5/1/2016 1st $24,773 77 118 6/1/2016 1st $24,535 78 116 4/1/2016 1st $24,000 79 117 5/1/2016 1st $22,826 80 118 6/1/2016 1st $23,193 81 119 7/1/2016 1st $22,260 82 116 4/1/2016 1st $21,612 83 113 1/1/2016 1st $19,424 84 118 6/1/2016 1st $18,201 85 118 6/1/2016 1st $18,148 86 118 6/1/2016 1st $16,974 87 118 6/1/2016 1st $15,117 88 118 6/1/2016 1st $14,672 89 119 7/1/2016 1st $15,698 90 117 5/1/2016 1st $14,671 91 116 4/1/2016 1st $13,200 92 118 6/1/2016 1st $13,145 93 118 6/1/2016 1st $12,979 94 117 5/1/2016 1st $11,097 95 117 5/1/2016 1st $11,411 96 117 5/1/2016 1st $8,888 Sequence Administrative Fee Rate (3) Primary Servicing Fee Rate Master Servicing Fee Rate Ownership Interest -------- --------------------------- -------------------------- ------------------------- ------------------ 1 0.021% 0.010% 0.010% Fee 2 0.021% 0.010% 0.010% Fee 3 0.021% 0.010% 0.010% Fee 4 0.021% 0.010% 0.010% Fee 5 0.021% 0.010% 0.010% Fee 6 0.021% 0.010% 0.010% Fee 7 0.021% 0.010% 0.010% Fee 8 0.021% 0.010% 0.010% Fee 9 0.021% 0.010% 0.010% Fee 10 0.021% 0.010% 0.010% Fee 11 0.021% 0.010% 0.010% Fee/Leasehold 12 0.021% 0.010% 0.010% Fee 13 0.021% 0.010% 0.010% Fee 14 0.021% 0.010% 0.010% Fee 15 0.021% 0.010% 0.010% Fee 16 0.021% 0.010% 0.010% Fee 17.1 Fee 17.2 Fee 17.3 Fee 17.4 Fee 17.5 Fee 17.6 Fee 17.7 Fee 17.8 Fee 17.9 Fee 17.1 Fee 17.11 Fee 17.12 Fee 17.13 Fee 17.14 Fee 17.15 Fee 17.16 Fee 17.17 Fee 17.18 Fee 17.19 Fee 17 0.021% 0.010% 0.010% Fee 18 0.051% 0.040% 0.010% Fee 19 0.021% 0.010% 0.010% Fee 20 0.021% 0.010% 0.010% Fee 21 0.021% 0.010% 0.010% Fee 22 0.041% 0.030% 0.010% Fee 23 0.021% 0.010% 0.010% Fee 24 0.041% 0.030% 0.010% Fee 25 0.021% 0.010% 0.010% Fee 26 0.051% 0.040% 0.010% Fee 27 0.041% 0.030% 0.010% Leasehold 28 0.041% 0.030% 0.010% Fee 29 0.041% 0.030% 0.010% Fee 30 0.051% 0.040% 0.010% Fee 31 0.041% 0.030% 0.010% Fee 32 0.021% 0.010% 0.010% Fee 33 0.021% 0.010% 0.010% Fee 34 0.021% 0.010% 0.010% Fee 35 0.041% 0.030% 0.010% Leasehold 36 0.041% 0.030% 0.010% Leasehold 37 0.021% 0.010% 0.010% Fee 38 0.021% 0.010% 0.010% Fee 39.1 Fee 39.2 Fee 39.3 Fee 39 0.021% 0.010% 0.010% Fee 40 0.071% 0.060% 0.010% Fee 41 0.061% 0.050% 0.010% Fee 42 0.061% 0.050% 0.010% Fee 43 0.021% 0.010% 0.010% Fee 44 0.021% 0.010% 0.010% Leasehold 45 0.041% 0.030% 0.010% Fee 46 0.041% 0.030% 0.010% Fee 47 0.021% 0.010% 0.010% Fee 48 0.071% 0.060% 0.010% Fee 49 0.021% 0.010% 0.010% Fee 50 0.071% 0.060% 0.010% Fee 51 0.021% 0.010% 0.010% Fee 52 0.021% 0.010% 0.010% Fee 53 0.021% 0.010% 0.010% Fee 54 0.051% 0.040% 0.010% Fee 55.1 Fee 55.2 Fee 55 0.071% 0.060% 0.010% Fee 56 0.021% 0.010% 0.010% Fee 57 0.041% 0.030% 0.010% Fee 58 0.021% 0.010% 0.010% Fee 59 0.021% 0.010% 0.010% Fee 60 0.051% 0.040% 0.010% Fee 61 0.021% 0.010% 0.010% Fee 62 0.041% 0.030% 0.010% Fee 63 0.021% 0.010% 0.010% Fee 64 0.021% 0.010% 0.010% Fee 65 0.041% 0.030% 0.010% Fee 66 0.041% 0.030% 0.010% Fee 67 0.021% 0.010% 0.010% Fee 68 0.021% 0.010% 0.010% Fee 69 0.021% 0.010% 0.010% Fee 70 0.021% 0.010% 0.010% Fee 71 0.021% 0.010% 0.010% Fee 72 0.021% 0.010% 0.010% Fee 73 0.071% 0.060% 0.010% Leasehold 74 0.091% 0.080% 0.010% Fee 75.1 Fee 75.2 Fee 75.3 Fee 75 0.041% 0.030% 0.010% Fee 76 0.021% 0.010% 0.010% Fee 77 0.021% 0.010% 0.010% Fee 78 0.071% 0.060% 0.010% Fee 79 0.021% 0.010% 0.010% Fee 80 0.021% 0.010% 0.010% Fee 81 0.021% 0.010% 0.010% Fee 82 0.041% 0.030% 0.010% Fee 83 0.081% 0.070% 0.010% Fee 84 0.061% 0.050% 0.010% Fee 85 0.061% 0.050% 0.010% Fee 86 0.071% 0.060% 0.010% Fee 87 0.021% 0.010% 0.010% Fee 88 0.021% 0.010% 0.010% Fee 89 0.021% 0.010% 0.010% Fee 90 0.041% 0.030% 0.010% Fee 91 0.071% 0.060% 0.010% Fee 92 0.091% 0.080% 0.010% Fee 93 0.091% 0.080% 0.010% Fee 94 0.021% 0.010% 0.010% Fee 95 0.021% 0.010% 0.010% Fee 96 0.071% 0.060% 0.010% Fee Original Amortization Sequence Cross-Collateralized Loans Months ARD Loan Grace Period Loan Group -------- -------------------------- ------------ -------- ------------ ---------- 1 No No 1 2 No No 5 2 3 No 360 No 1 4 No No 5 1 5 No 300 No 1 6 No 360 No 1 7 No No 5 1 8 No 360 No 1 9 No No 1 10 No 360 No 1 11 No No 1 12 No 360 No 1 13 No 360 No 5 1 14 No 360 No 5 1 15 No No 5 1 16 No 360 No 5 1 17.1 1 17.2 1 17.3 1 17.4 1 17.5 1 17.6 1 17.7 1 17.8 1 17.9 1 17.1 1 17.11 1 17.12 1 17.13 1 17.14 1 17.15 1 17.16 1 17.17 1 17.18 1 17.19 1 17 No 360 No 1 18 No No 10 1 19 No 360 No 5 1 20 No 360 No 5 2 21 No No 5 1 22 No 360 No 1 23 No 360 No 5 1 24 No 360 No 1 25 No 360 No 5 1 26 No 360 No 5 1 27 No 360 No 1 28 No 360 No 1 29 No 360 No 1 30 No 360 No 5 2 31 No 360 No 1 32 Yes - BACM 06-3 A 360 No 5 1 33 Yes - BACM 06-3 A 360 No 5 1 34 No No 1 35 No 360 No 1 36 No 360 No 1 37 No 360 No 5 1 38 No 360 Yes 5 1 39.1 1 39.2 1 39.3 1 39 No 360 No 5 1 40 No 360 No 5 1 41 No 360 No 5 1 42 No 360 Yes 5 1 43 No 360 No 5 1 44 No 360 No 5 1 45 No 360 No 5 1 46 No 360 No 5 2 47 No 360 No 5 1 48 No 360 No 5 2 49 No 360 No 5 1 50 No 360 No 5 2 51 No No 5 1 52 No 360 No 5 1 53 No Yes 5 1 54 No 360 No 5 1 55.1 1 55.2 1 55 No 360 No 5 1 56 No 360 No 5 1 57 No 360 No 5 1 58 No 360 No 5 1 59 No 360 No 5 2 60 No 360 No 5 1 61 No 360 No 5 1 62 No 360 No 5 1 63 No 360 No 5 2 64 No 360 No 5 1 65 No 360 No 7 1 66 No 360 Yes 5 1 67 No 360 No 5 1 68 No 360 No 5 1 69 No 360 No 5 2 70 No 360 No 5 1 71 No 360 No 5 1 72 No 360 No 5 1 73 No 323 No 5 1 74 No 360 No 5 1 75.1 2 75.2 2 75.3 2 75 No 360 No 5 2 76 No 342 No 5 1 77 No 360 No 5 1 78 No 360 No 5 2 79 No 360 No 5 2 80 No 360 No 5 1 81 No 360 No 5 2 82 No 360 No 5 1 83 No 356 No 5 2 84 No 360 No 5 1 85 No 360 Yes 5 1 86 No 360 No 5 2 87 No 360 No 5 2 88 No 360 No 5 1 89 No 360 No 5 1 90 No 360 No 5 1 91 No 360 No 5 2 92 No 360 No 5 1 93 No 360 No 5 1 94 No 360 No 5 1 95 No 360 No 5 1 96 No 360 No 5 1
1) Rates are to full precision in the "BACM2006_3.xls" file located on the computer diskette. 2) For Mortgage Loans which accrue interest on the basis of actual days elapsed each calendar month and a 360-day year, the amortization term is the term over which the Mortgage Loans would amortize if interest accrued and was paid on the basis of a 360-day year consisting of twelve 30-day months. The actual amortization would be longer. 3) Administrative Fee Rate includes the rates at which the master servicing fee (and any sub-servicing fee) and trustee fee accrue. SCHEDULE II MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES For purposes of these representations and warranties, the phrases "to the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to (i) after having conducted such inquiry and due diligence into such matters as would be customarily performed by prudent institutional commercial or multifamily mortgage lenders, as applicable, at the time of the origination of the particular Mortgage Loan and (ii) subsequent to such origination, utilizing the servicing and monitoring practices customarily utilized by prudent commercial mortgage loan servicers with respect to securitizable commercial or multifamily, as applicable, mortgage loans, and the Seller shall have made prudent inquiries of related servicers, and the phrases "to the actual knowledge of the Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Mortgage File (each such document, a "Loan Document") shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller or its agents or employees, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or not taking such action by the Seller or any servicer acting on its behalf. The Seller represents and warrants with respect to each Mortgage Loan that, as of the date specified below or, if no such date is specified, as of the Closing Date: (1) Mortgage Loan Schedule. The information pertaining to each Mortgage Loan set forth in the schedule annexed hereto as Schedule I (the "Mortgage Loan Schedule") was true and correct in all material respects as of the Cut-off Date. (2) Legal Compliance - Origination, Funding and Servicing. As of the date of its origination, and to the actual knowledge of the Seller as of the Closing Date, such Mortgage Loan complied in all material respects with, or was exempt from, all requirements of federal, state or local law relating to the origination, funding and servicing of such Mortgage Loan. (3) Good Title; Conveyance. Immediately prior to the sale, transfer and assignment to the Purchaser, the Seller had good title to, and was the sole owner of, each Mortgage Loan, and the Seller is transferring such Mortgage Loan free and clear of any and all liens, pledges, charges, security interests, participation interests and/or of any other interests or encumbrances of any nature whatsoever (except for the Title Exceptions), and the Seller has full right, power and authority to sell, transfer and assign each Mortgage Loan free and clear of all such liens, claims, pledges, charges and interests or encumbrances. The Seller has validly and effectively conveyed to the Purchaser all legal and beneficial interest in and to such Mortgage Loan. The sale of the Mortgage Loans to the Purchaser does not require the Seller to obtain any governmental or regulatory approval or consent that has not been obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly endorsed to the Trustee and each such endorsement is genuine. (4) No Holdbacks; Improvements Complete or Escrows Established. The proceeds of each Mortgage Loan have been fully disbursed (except in those cases where the full amount of the Mortgage Loan has been disbursed but a portion thereof is being held in escrow or reserve accounts pending the satisfaction of certain conditions relating to leasing, repairs or other matters with respect to the related Mortgaged Property), and there is no obligation for future advances with respect thereto. Any and all requirements under each Mortgage Loan as to completion of any on-site or off-site improvement and as to disbursements of any funds escrowed for such purpose, have been complied with in all material aspects or any such funds so escrowed have not been released; provided that partial releases of such funds in accordance with the applicable Loan Documents may have occurred. (5) Legal, Valid and Binding Obligations. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document separate from the Mortgage) and other agreement executed in connection with such Mortgage Loan is a legal, valid and binding obligation of the related Mortgagor or guarantor (subject to any non-recourse provisions therein and any state anti-deficiency legislation or market value limit deficiency legislation), enforceable in accordance with its terms, except with respect to provisions relating to default interest, late fees, additional interest, yield maintenance charges or prepayment premiums and except as such enforcement may be limited by bankruptcy, insolvency, receivership, reorganization, moratorium, redemption, liquidation or other laws affecting the enforcement of creditors' rights generally, or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). (6) Assignment of Leases and Rents. There exists as part of the related Mortgage File an Assignment of Leases either as a separate document or as part of the Mortgage. Each related Assignment of Leases creates a valid, collateral or first priority assignment of, or a valid perfected first priority security interest in, certain rights under the related leases, subject only to a license granted to the related Mortgagor to exercise certain rights and to perform certain obligations of the lessor under such leases, including the right to operate the related Mortgaged Property and subject to limits on enforceability described in Paragraph (5). No Person other than the related Mortgagor owns any interest in any payments due under the related leases. Each related Assignment of Leases provides for the appointment of a receiver for rent, allows the holder to enter into possession to collect rents or provides for rents to be paid directly to the holder of the Mortgage upon an event of default under the Mortgage Loan documents. (7) No Offset or Defense. There is no right of offset, abatement, diminution, or rescission or valid defense or counterclaim with respect to any of the related Mortgage Note, Mortgage(s) or other agreements executed in connection therewith, except in each case, with respect to the enforceability of any provisions requiring the payment of default interest, late fees, additional interest, yield maintenance charges or prepayment premiums and, as of the Closing Date, to the Seller's actual knowledge no such rights have been asserted. (8) Mortgage Status; Legal, Valid and Binding Obligations. Each related assignment of Mortgage and assignment of Assignment of Leases from the Seller to the Trustee has been duly authorized, executed and delivered in recordable form by the Seller and constitutes the legal, valid, binding and enforceable assignment from the Seller, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or other laws relating to or affecting creditors' rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); provided, if the related assignment of Mortgage and/or assignment of Assignment of Leases has been recorded in the name of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, no assignment of Mortgage and/or assignment of Assignment of Leases in favor of the Trustee will be required to be prepared or delivered and instead, the Seller shall take all actions as are necessary to cause the Trust to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Each related Mortgage and Assignment of Leases is freely assignable upon notice to but without the consent of the related Mortgagor. (9) Mortgage Lien. Subject to the exceptions set forth in Paragraph (5) above, each related Mortgage is a legal, valid and enforceable first lien on the related Mortgaged Property, subject only to the following title exceptions (each such exception, a "Title Exception", and collectively, the "Title Exceptions"): (a) the lien of current real property taxes, water charges, sewer rents and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record, none of which, individually or in the aggregate, materially interferes with the current use or operation of the Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor's ability to pay its obligations when they become due or materially and adversely affects the value of the Mortgaged Property, (c) any other exceptions and exclusions (general and specific) set forth in the mortgagee policy of title insurance issued with respect to the Mortgage Loan, none of which, individually or in the aggregate, materially and adversely interferes with the current use or operation of the Mortgaged Property or the security intended to be provided by such Mortgage or with the Mortgagor's ability to pay its obligations under the Mortgage Loan when they become due or materially and adversely affects the value of the Mortgaged Property, (d) the right of tenants (whether under ground leases or space leases) at the Mortgaged Property to remain following a foreclosure or similar proceeding (provided that such tenants are performing under such leases), and (e) if such Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in the same Cross-Collateralized Group; and such Mortgaged Property is free and clear of any mechanics' and materialmen's liens which are prior to or equal with the lien of the related Mortgage, except those which are insured against by a lender's title insurance policy as described above and to the Seller's actual knowledge no rights are outstanding that under applicable law could give rise to any such lien that would be prior or equal to the lien of the related Mortgage and is not bonded over, escrowed for or covered by insurance. (10) UCC Filings. The security agreements or other instruments, if any, related to the Mortgage Loan establish and create, and a UCC Financing Statement has been filed, recorded or submitted for recording in all places required by applicable law for the perfection of (to the extent that the filing of such a UCC Financing Statement can perfect such a security interest), a valid security interest in the personal property granted under such Mortgage (and any related security agreement), except as enforceability may be limited by bankruptcy or other laws affecting enforcement of creditor's rights generally or by the application of the rules of equity, and except for certain personal property and fixtures subject to purchase money security interests and personal property leases permitted under the terms of the Mortgage Loan. In the case of a Mortgaged Property operated as a hotel, restaurant, healthcare facility, nursing home, assisted living facility, self-storage facility, theatre, mobile home park or fitness center, such personal property includes all personal property that a prudent institutional lender making a similar mortgage loan on like properties would deem reasonably necessary to operate the related Mortgaged Property as it is currently being operated, and the related perfected security interest is prior to any other security interest that can be perfected by such UCC filing, except for permitted purchase money security interests and leases; provided that any such lease has been pledged or assigned to the lender and its assigns. In the case of each Mortgage Loan secured by a hotel, the related Loan Documents contain such provisions as are necessary and UCC Financing Statements have been filed or submitted for filing as necessary, in each case, to perfect a valid first priority security interest in the related revenues with respect to such Mortgaged Property. An assignment of each UCC Financing Statement relating to the Mortgage Loan has been delivered by Seller in blank which the Purchaser or Trustee, as applicable, or designee is authorized to complete and to file in the filing office in which such UCC Financing Statement was filed. Each Mortgage Loan and the related Mortgage (along with any security agreement and UCC Financing Statement), together with applicable state law, contain customary and enforceable provisions such as to render the rights and remedies of the holders thereof adequate for the practical realization against the personal property described above, and the principal benefits of the security intended to be provided thereby; provided, if the related security agreement and/or UCC Financing Statement has been recorded in the name of MERS or its designee, no assignment of security agreement and/or UCC Financing Statement in favor of the Trustee will be required to be prepared or delivered and instead, the Seller shall take all actions as are necessary to cause the Trust to be shown as the owner of the related Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. Notwithstanding the foregoing, no representation is made as to the perfection of any security interest in rents or any other personal property to the extent that the possession or control of such items or actions other than the filing of the UCC Financing Statement as required in order to effect such perfection. (11) Taxes and Assessments. All taxes and governmental assessments or charges or water or sewer bills that prior to the Cut-off Date became due and owing in respect of each related Mortgaged Property have been paid, or if in dispute, an escrow of funds in an amount sufficient to cover such payments has been established. Such taxes and assessments shall not be considered delinquent or due and owing until the date on which interest or penalties may first be payable thereon. (12) Condition of Property; No Condemnation; No Encroachments. In the case of each Mortgage Loan, one or more engineering assessments which included a physical visit and inspection of the Mortgaged Property were performed by an independent engineering consultant firm and except as set forth in an engineering report prepared in connection with such assessment, a copy of which has been delivered to the Master Servicer, the related Mortgaged Property is, to the Seller's knowledge as of the Closing Date, free and clear of any damage that would materially and adversely affect its value as security for such Mortgage Loan. If an engineering report revealed any material damage or deficiencies, material deferred maintenance or other similar conditions, either (a) an escrow of funds was required or a letter of credit was obtained in an amount equal to at least 125% of the amount estimated to effect the necessary repairs, or such other amount as a prudent commercial lender would deem appropriate under the circumstances sufficient to effect the necessary repairs or maintenance or (b) such repairs and maintenance have been completed. As of origination of such Mortgage Loan there was no proceeding pending, and subsequent to such date, the Seller has no actual knowledge of, any proceeding pending for the condemnation of all or any material portion of the Mortgaged Property securing any Mortgage Loan. To the Seller's knowledge (based solely on surveys (if any) and/or the lender's title policy (or, if not yet issued, a pro forma title policy or "marked up" commitment) obtained in connection with the origination of each Mortgage Loan), as of the date of the origination of each Mortgage Loan and to the Seller's knowledge as of the Cut-off Date: (a) all of the material improvements on the related Mortgaged Property lay wholly within the boundaries and, to the extent in effect at the time of construction, building restriction lines of such property, except for encroachments that are insured against by the lender's title insurance referred to in Paragraph (13) below or that do not materially and adversely affect the value or marketability of such Mortgaged Property, and (b) no improvements on adjoining properties materially encroached upon such Mortgaged Property so as to materially and adversely affect the use or the value of such Mortgaged Property, except those encroachments that are insured against by the lender's title insurance referred to in Paragraph (13) below. (13) Title Insurance. The Seller has received an ALTA lender's title insurance policy or an equivalent form of lender's title insurance policy (or if such policy is not yet issued, such insurance may be evidenced by a "marked up" pro forma policy or title commitment, in either case marked as binding and countersigned by the title insurer or its authorized agent either on its face or by an acknowledged closing instruction or escrow letter) as adopted in the applicable jurisdiction (the "Title Insurance Policy"), which was issued by a title insurance company qualified to do business in the jurisdiction where the applicable Mortgaged Property is located to the extent required, insuring the portion of each Mortgaged Property comprised of real estate and insuring the originator of such Mortgage Loan and its successors and assigns (as sole insureds) that the related Mortgage is a valid first lien in the original principal amount of the related Mortgage Loan on the Mortgagor's fee simple interest (or, if applicable, leasehold interest) in such Mortgaged Property comprised of real estate, subject only to the Title Exceptions. Such Title Insurance Policy was issued in connection with the origination of the related Mortgage Loan. No claims have been made under such Title Insurance Policy. Such Title Insurance Policy is in full force and effect, provides that the insured includes the owner of the Mortgage Loan and all premiums thereon have been paid. Immediately following the transfer and assignment of the related Mortgage Loan to the Trustee (including endorsement and delivery of the related Mortgage Note to the Purchaser), such Title Insurance Policy (or, if it has yet to be issued, the coverage to be provided thereby) will inure to the benefit of the Purchaser and its successors and assigns without consent or notice to the title insurer. The Seller has not done, by act or omission, anything that would impair the coverage under such Title Insurance Policy. Such Title Insurance Policy contains no exclusion for, or it affirmatively insures (unless the related Mortgaged Property is located in a jurisdiction where such affirmative insurance is not available), (a) access to a public road, (b) that there are no encroachments of any part of the building thereon over easements, and (c) that the area shown on the survey is the same as the property legally described in the related Mortgage. (14) Insurance. All improvements upon each Mortgaged Property securing a Mortgage Loan are insured by all insurance coverage required under each related Mortgage, which insurance covered such risks as were customarily acceptable to prudent commercial and multifamily mortgage lending institutions lending on the security of property comparable to the related Mortgaged Property in the jurisdiction in which such Mortgaged Property is located. Each Mortgaged Property was covered by a fire and extended perils included under the classification "All Risk of Physical Loss" insurance (or the equivalent) policy in an amount at least equal to the lesser of the outstanding principal balance of such Mortgage Loan and 100% of the replacement cost of the improvements located on the related Mortgaged Property, and if applicable, the related hazard insurance policy contains appropriate endorsements to avoid the application of co-insurance and does not permit reduction in insurance proceeds for depreciation. Each Mortgaged Property securing a Mortgage Loan is the subject of a business interruption or rent loss insurance policy providing coverage for at least twelve (12) months (or a specified dollar amount which, in the reasonable judgement of the Seller, will cover no less than twelve (12) months of rental income). If any portion of the improvements on a Mortgaged Property securing any Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an area identified in the Federal Register by the Flood Emergency Management Agency as a special flood hazard area (Zone A or Zone V) (an "SFH Area"), and flood insurance was available, a flood insurance policy meeting the requirements of the then current guidelines of the Federal Insurance Administration is in effect with a generally acceptable insurance carrier, in an amount representing coverage not less than the least of (a) the minimum amount required, under the terms of coverage, to compensate for any damage or loss on a replacement basis, (b) the outstanding principal balance of such Mortgage Loan, and (c) the maximum amount of insurance available under the applicable National Flood Insurance Administration Program. Each Mortgaged Property and all improvements thereon are also covered by comprehensive general liability insurance in such amounts as are generally required by reasonably prudent commercial lenders for similar properties; if any Mortgaged Property is located in the state of California or in a "seismic zone" 3 or 4, a seismic assessment was conducted (except in the case of mobile home parks) at the time of originations and seismic insurance was obtained to the extent such Mortgaged Property has a PML of greater than twenty percent (20%) calculated using at least a 450 a year look back with a 10% probability of exceedance in a 50 year period; all properties in Florida and within 25 miles of the coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina and South Carolina have windstorm insurance; any nonconformity with applicable zoning laws and ordinances (1) is not a material nonconformity and does not materially and adversely affect the use, operation or value of the Mortgaged Property, (2) constitutes a legal non-conforming use or structure which, in the event of casualty or destruction, may be restored or repaired to materially the same extent of the use or structure at the time of such casualty, (3) is covered by law and ordinance insurance in an amount customarily required by reasonably prudent commercial or multifamily, as applicable, mortgage lenders, (4) is covered by a zoning endorsement covering any loss to the mortgagee resulting from such non-conformity or (5) is covered by insurance that will provide proceeds that, together with the value of the related land, will be sufficient to repay the Mortgage Loan; and additionally, for any Mortgage Loan having a Cut-off Date Balance equal to or greater than $20,000,000, the insurer for all of the required coverages set forth herein has a claims paying ability rating from Standard & Poor's, 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, with respect to non-payment, 10 days' prior written notice to the mortgagee) or such lesser period as prescribed by applicable law; and no such notice has been received, including any notice of nonpayment 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 environmental site assessments meeting the requirements of the American Society for Testing and Materials in effect at the time the related report was or the related reports were prepared covering all environmental hazards typically assessed for similar properties including use, type and tenants of the Mortgaged Property (an "Environmental Report"), or an update of such an assessment, was performed by an experienced licensed (to the extent required by applicable state law) environmental consulting firm with respect to each Mortgaged Property securing a Mortgage Loan in connection with the origination of such Mortgage Loan and thereafter updated such that, (a) such Environmental Report is dated no earlier than twelve months prior to the Closing Date, (b) a copy of each such Environmental Report has been delivered to the Purchaser; and (c) either: (i) no such Environmental Report provides that as of the date of the report there is a material violation of any applicable environmental laws with respect to any circumstances or conditions relating to the related Mortgaged Property; or (ii) if any such Environmental Report does reveal any such circumstances or conditions with respect to the related Mortgaged Property and the same have not been subsequently remediated in all material respects, then one or more of the following are true--(A) a party not related to the related Mortgagor with financial resources reasonably adequate to cure the subject violation in all material respects was identified as the responsible party for such condition or circumstance, (B) the related Mortgagor was required to provide additional security adequate to cure the subject violation in all material respects and to obtain an operations and maintenance plan, (C) such conditions or circumstances were investigated further and based upon such additional investigation, an independent environmental consultant recommended no further investigation or remediation, or recommended only the implementation of an operations and maintenance program, which the Mortgagor is required to do, (D) there exists an escrow of funds reasonably estimated to be sufficient for purposes of effecting such remediation, (E) the related Mortgaged Property is insured under a policy of insurance against losses arising from such circumstances and conditions, (F) the circumstance or condition has been fully remediated, (G) the related Mortgagor provided a "no further action" letter or other evidence acceptable to the Seller and that would be acceptable to a reasonably prudent lender, that applicable federal, state or local governmental authorities had no current intention of taking any action, and are not requiring any action, in respect of such condition or circumstance, (H) the expenditure of funds reasonably estimated to be necessary to effect such remediation is the lesser of (a) 2% of the outstanding principal balance of the related Mortgage Loan and (b) $200,000, (I) the related Mortgagor or another responsible party is currently taking such actions, if any, with respect to such circumstances or conditions as have been required by the applicable governmental regulatory authority, or (J) a responsible party with financial resources reasonably adequate to cure the violation provided a guaranty or indemnity to the related Mortgagor to cover the costs of any required investigation, testing, monitoring or remediation. To the Seller's actual knowledge and without inquiry beyond the related Environmental Report, there are no significant or material circumstances or conditions with respect to any Mortgaged Property not revealed in any such Environmental Report, where obtained, or in any Mortgagor questionnaire delivered to Seller at the issue of any related environmental insurance policy, if applicable, that render such Mortgaged Property in material violation of any applicable environmental laws. The Mortgage, or other Loan Document in the Mortgage File, for each Mortgage Loan encumbering the Mortgaged Property requires the related Mortgagor to comply and cause the Mortgaged Property to comply with all applicable federal, state and local environmental laws and regulations. The Seller has not taken any action which would cause the Mortgaged Property not to be in compliance with all federal, state and local laws pertaining to environmental hazards or which could subject the Seller or its successors and assigns to liability under such laws. Each Mortgagor represents and warrants in the related Loan Documents generally to the effect that except as set forth in certain specified environmental reports and to the best of its knowledge that as of the date of origination of such Mortgage Loan, there were no hazardous materials on the related Mortgaged Property, and that the Mortgagor will not use, cause or permit to exist on the related Mortgaged Property any hazardous materials, in any manner which violates federal, state or local laws, ordinances, regulations, orders, directives, or policies governing the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of hazardous materials. The related Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and hold the Seller and its successors and assigns harmless from and against, or otherwise be liable for, any and all losses resulting from a breach of environmental representations, warranties or covenants given by the Mortgagor in connection with such Mortgage Loan, generally including any and all losses, liabilities, damages, injuries, penalties, fines, expenses and claims of any kind or nature whatsoever (including without limitation, attorneys' fees and expenses) paid, incurred or suffered by or asserted against, any such party resulting from such breach. (20) Customary Mortgage Provisions. The related Loan Documents contain customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the practical realization against the Mortgaged Property of the benefits of the security, including realization by judicial or, if customary, non-judicial foreclosure, subject to the effects of bankruptcy or similar law affecting the right of creditors and the application of principles of equity, and there is no exemption available to the Mortgagor which would interfere with such right to foreclose except any statutory right of redemption or as may be limited by anti-deficiency laws or by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and by general principals of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). (21) Bankruptcy. No Mortgaged Property, nor any material portion thereof, is the subject of and no Mortgagor is a debtor in any state or federal bankruptcy or insolvency or similar proceeding. (22) Whole Loan; Interest Only; No Equity Participation or Contingent Interest. Each Mortgage Loan is a whole loan and not a participation interest in a loan. No Mortgage Loan contains any equity participation by the mortgagee thereunder, is convertible by its terms into an equity ownership interest in the related Mortgaged Property or the related Mortgagor, has a shared appreciation feature, provides for any contingent or additional interest in the form of participation in the cash flow of the related Mortgaged Property, or provides for interest-only payments without principal amortization 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 June 26, 2006. The Seller has not taken any intentional action that would cause the representations and warranties of the related Mortgagor under the Mortgage Loan not to be true and correct in any material respect. (25) Inspection. Each related Mortgaged Property was inspected by or on behalf of the related originator within the 12 months prior to the Closing Date. (26) Releases of Mortgaged Property. Since origination, no portion of the related Mortgaged Property has been released from the lien of the related Mortgage, in any manner which materially and adversely affects the value, use or operation of the Mortgage Loan or materially interferes with the security intended to be provided by such Mortgage. The terms of the related Mortgage do not provide for release of any material portion of the Mortgaged Property from the lien of the Mortgage except (a) in consideration of payment therefor equal to not less than 125% of the related allocated loan amount of such Mortgaged Property specifically set forth in the related Loan Documents, (b) upon payment in full of such Mortgage Loan, (c) Mortgage Loans which permit defeasance by means of substituting for the Mortgaged Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged Properties, one or more of such Mortgaged Properties) "government securities" within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans in accordance with their terms, (d) Mortgage Loans which permit the related Mortgagor to substitute a replacement property subject to the satisfaction of enumerated conditions that would be acceptable to a reasonably prudent commercial or multifamily, as applicable, lender, but which do not include the consent or approval of the lender to the substitution or the substitute property, or (e) a portion of the Mortgaged Property that was not given any value in connection with either the initial underwriting or appraisal of the Mortgage Loan. (27) Defeasance. With respect to any Mortgage Loan that contains a provision for any defeasance of mortgage collateral (a "Defeasance Loan"), the related Mortgage Note, Mortgage or other related Loan Document contained in the Mortgage File, provides that the defeasance option is not exercisable prior to a date that is at least two (2) years following the Closing Date and is otherwise in compliance with applicable statutes, rules and regulations governing REMICs; requires prior written notice to the holder of the Mortgage Loan of the exercise of the defeasance option and payment by Mortgagor of all related fees, costs and expenses as set forth below; requires, or permits the lender to require, the Mortgage Loan (or the portion thereof being defeased) to be assumed by a single-purpose entity; and requires delivery of a legal opinion that the Trustee has a perfected security interest in such collateral prior to any other claim or interest. In addition, each Mortgage loan that is a Defeasance Loan permits defeasance only with substitute collateral constituting "government securities" within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments under the Mortgage Note (or the portion thereof being defeased) either through and including the maturity date of the loan or to the first date that the Borrower can prepay the Loan without a prepayment premium, and in the case of ARD Loans, assuming the Anticipated Repayment Date is the Stated Maturity Date. Further, the Mortgage or other related Loan Document contained in the Mortgage File requires that an independent certified public accountant certify that such government securities are sufficient to make all such scheduled payments when due. To Seller's actual knowledge, defeasance under the Mortgage Loan is only for the purpose of facilitating the release of the Mortgaged Property and not as a part of an arrangement to collateralize a REMIC with obligations that are not real estate mortgages. With respect to each Defeasance Loan, the related Mortgage or other related Loan Document provides that the related Mortgagor shall (or permits the mortgagee to require the Mortgagor to) (a) pay all Rating Agency fees associated with defeasance (if Rating Agency approval is a specific condition precedent thereto) and all other reasonable expenses associated with defeasance, including, but not limited to, accountant's fees and opinions of counsel, or (b) provide all opinions reasonably required by the mortgagee under the related Loan Documents, including, if applicable, a REMIC opinion and a perfection opinion and any applicable rating agency letters confirming no downgrade or qualification of ratings on any classes in the transaction. Additionally, for any Mortgage Loan having a Cut-off Date Balance equal to or greater than $20,000,000, the Mortgage Loan or the related documents require (or permit the mortgagee to require) confirmation from the Rating Agency that exercise of the defeasance option will not cause a downgrade or withdrawal of the rating assigned to any securities backed by the Mortgage Loan and require (or permit the mortgagee to require) the Mortgagor to pay any Rating Agency fees and expenses. (28) Local Law Compliance; Non-Conforming Uses or Improvements. To the Seller's knowledge as of the date of origination of such Mortgage Loan, and, to the Seller's actual knowledge, as of the Cut-off Date the Mortgaged Property and the improvements located on or forming part of, and the existing use of, each Mortgaged Property securing a Mortgage Loan was or are, as applicable, in material compliance with all applicable zoning laws including parking and ordinances, building codes and land laws applicable to the Mortgaged Property or the use and occupancy thereof or constitute a legal non-conforming use or structure (or, if any such improvement does not so comply and does not constitute a legal non-conforming use or structure, either law and ordinance insurance coverage has been obtained in amounts adequate to avoid loss to the mortgagee, or such non-compliance and failure does not materially and adversely affect the value of the related Mortgaged Property). (29) (reserved) (30) Single-Purpose Entity. Each Mortgage Loan with an original principal balance over $5,000,000 requires the Mortgagor to be for at least for so long as the Mortgage Loan is outstanding, and to Seller's actual knowledge each Mortgagor is, a Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a person, other than an individual, whose organizational documents provide, or which entity represented and covenanted in the related Loan Documents, substantially to the effect that such Mortgagor (i) is formed or organized solely for the purpose of owning and operating the related Mortgaged Property or Properties; (ii) does not engage in any business unrelated to such Mortgaged Property or Properties and the financing thereof; (iii) does not and will not have any material assets other than those related to its interest in such Mortgaged Property or Properties or the financing thereof; (iv) does not and will not have any indebtedness other than as permitted by the related Mortgage or other related Loan Documents; (v) maintains its own books, records and accounts, in each case which are separate and apart from the books, records and accounts of any other person; and (vi) holds itself out as being a legal entity, separate and apart from any other person. In addition, with respect to all Mortgage Loans with an original principal balance of $15,000,000 or more, the Mortgagor's organizational documents provide substantially to the effect that the Mortgagor shall: observe all entity level formalities and record keeping; conduct business in its own name; not guarantee or assume the debts or obligations of any other person; not commingle its assets or funds with those of any other person; prepare separate tax returns and financial statements, or if part of a consolidated group, be shown as a separate member of such group; transact business with affiliates on an arm's length basis pursuant to written agreements; hold itself out as being a legal entity, separate and apart from any other person and such organizational documents provide that: any dissolution or winding up or insolvency filing for such entity is prohibited or requires the unanimous consent of an independent director or member or all partners or members, as applicable; such documents may not be amended with respect to the Single-Purpose Entity requirements without the approval of the mortgagee or rating agencies; and the Mortgagor shall have an outside independent director or member. The Mortgage File for each such Mortgage Loan having an original principal balance of $20,000,000 or more contains a counsel's opinion regarding non-consolidation of the Mortgagor in any insolvency proceeding involving its equity owner or group of equity owners having an equity interest greater than 49%. To Seller's actual knowledge, each Mortgagor has fully complied with the requirements of the related Mortgage Loan and Mortgage and the Mortgagor's organizational documents regarding Single-Purpose-Entity status. The organization documents of any Mortgagor on a Mortgage Loan having an original principal balance of $15,000,000 or more which is a single member limited liability company provide that the Mortgagor shall not dissolve or liquidate upon the bankruptcy, dissolution, liquidation or death of the sole member. (31) No Advances. No advance of funds has been made after origination, directly or indirectly, by the Seller to the Mortgagor and, to the Seller's knowledge, no funds have been received from any person other than the Mortgagor, for or on account of payments due on the Mortgage Note or the Mortgage. (32) Litigation or Other Proceedings. To Seller's knowledge, as of origination there were no, and to the Seller's actual knowledge, as of the Closing Date, there are no, pending actions, suits, litigation, arbitration or other proceedings by or before any court, arbitrator or governmental authority against the Mortgagor (or any related guarantor to the extent the Seller would consider such guarantor material to the underwriting or such Mortgage Loan) under any Mortgage Loan or the related Mortgaged Property that could reasonably be expected to materially and adversely affect the value of the Mortgaged Property as security for such Mortgage Loan, the Mortgagor's ability to pay principal, interest or any other amounts due under such Mortgage Loan or such guarantor's ability to meet its obligations under the related Loan Documents. (33) No Usury. The Mortgage Rate (exclusive of any default interest, late charges or prepayment premiums) of such Mortgage Loan (other than an ARD Loan after the Anticipated Repayment Date) is a fixed rate, and complied as of the date of origination with, or was exempt from, applicable state or federal laws, regulations and other requirements pertaining to usury. (34) Trustee Under Deed of Trust. If the Mortgage for any Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law to serve as such, has either been properly designated and currently so serves or may be substituted in accordance with the Mortgage and applicable law, and (b) no fees or expenses are payable to such trustee by the Seller, the Purchaser or any transferee thereof except in connection with a trustee's sale after default by the related Mortgagor or in connection with any full or partial release of the related Mortgaged Property or related security for such Mortgage Loan and all such fees and expenses are the obligation of the Mortgagor under the Mortgage. (35) Other Collateral; Cross-Collateralization. The related Mortgage Note is not secured by any collateral that secures a Mortgage Loan that is not in the Trust Fund and each Mortgage Loan that is cross-collateralized is cross-collateralized only with other Mortgage Loans sold pursuant to this Agreement. (36) (reserved) (37) Escrow Deposits. All escrow deposits and payments required pursuant to the Loan Documents are in the possession, or under the control, of the Seller or its agent and there are no deficiencies in connection therewith, and all such escrows, deposits and payments will be conveyed by the applicable Seller to the Purchaser and identified as such with appropriate detail on the Closing Date. (38) Licenses and Permits. The Mortgage Loan requires the related Mortgagor, to the extent required by law, to be qualified to do business, and requires the related Mortgagor and the related Mortgaged Property to be in material compliance with all regulations, licenses, permits, authorizations, restrictive covenants and zoning and building laws, in each case to the extent required by law or to the extent that the failure to be so qualified or in compliance would have a material and adverse effect upon the enforceability of the Mortgage Loan or upon the practical realization against the related Mortgaged Property of the principal benefits of the security intended to be provided thereby. To the Seller's knowledge, as of the date of origination of each Mortgage Loan based on any of: (i) a letter from governmental authorities, (ii) a legal opinion, (iii) an endorsement to the related Title Insurance Policy, (iv) a zoning report from a zoning consultant, or (v) other due diligence that the originator of the Mortgage Loan customarily performs in the origination of comparable mortgage loans, and to the Seller's actual knowledge as of the Closing Date, the related Mortgagor was in possession of all material licenses, permits and franchises required by applicable law for the ownership and operation of the related Mortgaged Property as it was then operated or such material licenses and permits have otherwise been issued. (39) Origination, Servicing and Collection Practices. The origination (or acquisition, as the case may be), collection, and the servicing practices used by the Seller and its affiliates or contractors engaged by it with respect to the Mortgage Loan have been in all respects legal and have met customary standards utilized by prudent commercial or multifamily, as applicable, lenders and servicers. (40) Borrower Organization. Each Borrower that is an entity is organized under the laws of a state of the United States of America. (41) Non-Recourse Exceptions. Each Mortgage Loan is non-recourse, except that the Mortgagor and either: a principal of the Mortgagor or other natural person, with assets other than any interest in the Mortgagor, has agreed to be jointly and severally liable for all liabilities, expenses, losses, damages, expenses or claims suffered or incurred by the holder of the Mortgage Loan by reason of or in connection with: (i) any fraud or material misrepresentation by the Mortgagor, (ii) misapplication or misappropriation of rents, insurance proceeds or condemnation awards or (iii) violation of applicable environmental laws or breaches of environmental covenants. No waiver of liability for such non-recourse exceptions has been granted to the Mortgagor or any such guarantor or principal by the Seller or anyone acting on behalf of the Seller. (42) Separate Tax Parcels. Each Mortgaged Property constitutes one or more separate tax lots (or will constitute separate tax lots when the next tax maps are issued), or, in certain instances, an application has been made to the applicable governing authority for creation of separate tax lots that shall be effective for the next tax year (and, with respect to tax parcels for which such application has been made, prior to the creation of such separate tax lots, taxes are being escrowed for the entire existing tax parcel), or is subject to an endorsement under the related Title Insurance Policy insuring for losses arising from any claim that the Mortgaged Property is not one or more separate tax lots. (43) Financial Statements. Each Mortgage or related Loan Documents requires the Mortgagor upon request to provide the owner or holder of the Mortgage with quarterly (except for Mortgage Loans with an original principal balance less than $3,000,000) and annual operating statements (or a balance sheet statement of income and expenses and a statement of changes in financial position), and such additional information regarding the Mortgagor and the Mortgaged Property as the owner or holder of the Mortgage may request which annual financial statements for all Mortgage Loans with an original principal balance greater than $20,000,000 shall be audited by an independent certified public accountant upon the request of the holder of the Mortgage Loan. (44) Fee/Leasehold Properties. Each Mortgage Loan is secured by the fee interest in the related Mortgaged Property, except that with respect to Mortgage Loans that are secured by the interest of the related Mortgagor as a lessee under a ground lease of a Mortgaged Property (a "Ground Lease") (the term Ground Lease shall mean such ground lease, all written amendments and modifications, and any related estoppels or agreements from the ground lessor and, in the event the Mortgagor's interest is a ground subleasehold, shall also include not only such ground sublease but also the related ground lease), but not by the related fee interest in such Mortgaged Property (the "Fee Interest") and: (a) Such Ground Lease or a memorandum thereof has been duly recorded; such Ground Lease permits the interest of the lessee thereunder to be encumbered by the related Mortgage and does not restrict the use of the related Mortgaged Property by such lessee, its successors or assigns, in a manner that would materially adversely affect the security provided by the related Mortgage; and there has been no material change in the terms of such Ground Lease since its recordation, with the exception of written instruments which are a part of the related Mortgage File; (b) Such Ground Lease is not subject to any liens or encumbrances superior to, or of equal priority with, the related Mortgage, other than the related Fee Interest and Title Exceptions, and provides that it shall remain prior to any mortgage or other lien upon the related Fee Interest; (c) The Mortgagor's interest in such Ground Lease is assignable to the mortgagee and its successors and assigns upon notice to, but without the consent of, the lessor thereunder (or, if such consent is required, it has been obtained prior to the Closing Date) and, in the event that it is so assigned, is further assignable by the mortgagee and its successors and assigns upon notice to, but without the need to obtain the consent of, such lessor; (d) Such Ground Lease is in full force and effect, and the Seller has not received as of the Closing Date notice (nor is the Seller otherwise aware) that any default has occurred under such Ground Lease; (e) Seller or its agent has provided the lessor under the Ground Lease with notice of its lien, and such Ground Lease requires the lessor to give notice of any default by the lessee to the mortgagee, and such Ground Lease, or an estoppel letter received by the mortgagee from the lessor, further provides that no notice of termination given under such Ground Lease is effective against such mortgagee unless a copy has been delivered to such mortgagee in the manner described in such Ground Lease; (f) The mortgagee under such Mortgage Loan is permitted a reasonable opportunity (including, where necessary, sufficient time to gain possession of the interest of the lessee under such Ground Lease) to cure any default under such Ground Lease, which is curable after the receipt of written notice of any such default, before the lessor thereunder may terminate such Ground Lease, and all of the rights of the mortgagor under such Ground Lease and the related Mortgage (insofar as it relates to the Ground Lease) may be exercised by or on behalf of the mortgagee; (g) Such Ground Lease has a current term (including one or more optional renewal terms, which, under all circumstances, may be exercised, and will be enforceable, by the Seller and its successors and assigns) which extends not less than the greater of 10 years beyond the amortization term and 20 years beyond the Stated Maturity Date for the related Mortgage Loan (or, with respect to any Mortgage Loan with an Anticipated Repayment Date, 10 years beyond the amortization term); (h) Such Ground Lease requires the lessor to enter into a new lease with the mortgagee under such Mortgage Loan upon termination of such Ground Lease for any reason, including rejection of such Ground Lease in a bankruptcy proceeding; (i) Under the terms of such Ground Lease and the related Loan Documents, taken together, any related insurance proceeds or condemnation award that is awarded with respect to the leasehold interest will be applied either (i) to the repair or restoration of all or part of the related Mortgaged Property, with the mortgagee under such Mortgage Loan or a trustee appointed by it having the right to hold and disburse such proceeds as the repair or restoration progresses (except in such cases where a provision entitling another party to hold and disburse such proceeds would not be viewed as commercially unreasonable by a prudent commercial mortgage lender), or (ii) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon; (j) Such Ground Lease does not impose any restrictions on subletting which would be viewed as commercially unreasonable by a prudent commercial mortgage lender; and such Ground Lease contains a covenant that the lessor thereunder is not permitted, in the absence of an uncured default, to disturb the possession, interest or quiet enjoyment of any lessee in the relevant portion of the Mortgaged Property subject to such Ground Lease for any reason, or in any manner, which would materially adversely affect the security provided by the related Mortgage; (k) Such Ground Lease may not be amended or modified without the prior consent of the mortgagee under such Mortgage Loan and that any such action without such consent is not binding on such mortgagee, its successors or assigns; (l) The terms of such Ground Lease have not been waived, modified, satisfied, impaired, canceled, subordinated or rescinded in any manner which materially interferes with the security intended to be provided by the related Mortgage. (45) Fee Simple Interest. Except with respect to the Mortgage Loans secured by Ground Leases, each of the Mortgagors (or its affiliates) has title in the fee simple interest in each related Mortgaged Property. (46) ARD Loans. Each ARD Loan requires scheduled monthly payments of principal; if any ARD Loan is not paid in full by its Anticipated Repayment Date, and assuming that it is not otherwise in default, the rate at which such Mortgage Loan accrues interest will increase to the sum of the original Mortgage Rate and a specified margin not less than 2 percent (2%); the Anticipated Repayment Date of any such Mortgage Loan is not less than 7 years from the date of origination; and after the Anticipated Repayment Date, the Loan Documents provide that excess cash flow after payment of expenses, including scheduled interest and capital expenditures approved by the lender, will be used to repay principal. (47) Authorization in Jurisdiction. To the extent required under applicable law as of the date of origination, and necessary for the enforceability or collectability of the Mortgage Loan, the originator of such Mortgage Loan was authorized to do business in the jurisdiction in which the related Mortgaged Property is located at all times when it originated and held the Mortgage Loan. (48) No Negative Amortization; No Capital Contribution; No Financing for Incomplete Improvements. No Mortgage Loan, other than an ARD Loan (and then only after the Anticipated Repayment Date for such ARD Loan), provides for the negative amortization of interest. Neither the Seller nor any affiliate thereof has any obligation to make any capital contributions to the Mortgagor under the Mortgage Loan. The Mortgage Loan was not originated for the purpose of financing the construction of incomplete improvements on the related Mortgaged Property other than tenant improvements. (49) No Fraud. Neither the Seller, the originator, nor any employee or agent of the Seller or the originator has participated in any fraud or intentional material misrepresentation with respect to the Mortgagor, the Mortgaged Property or any guarantor. To Seller's actual knowledge, no Mortgagor or guarantor is guilty of defrauding or making an intentional material misrepresentation to the Seller with respect to the origination of the Mortgage Loan, the Mortgagor or the Mortgaged Property. (50) Grace Periods. The related Mortgage or Mortgage Note provides a grace period for delinquent Monthly Payments no longer than 10 days from the applicable Due Date other than as disclosed in the Mortgage Loan Schedule. (51) Appraisals. The Mortgage File contains an appraisal of the related Mortgaged Property, which appraisal is signed by an appraiser, who, to the Seller's knowledge, had no interest, direct or indirect, in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan; the appraisal or a supplemental letter from the appraiser states that the appraisal satisfies the appraisal guidelines set forth in Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (as amended), all as in effect on the date the Mortgage Loan was originated. (52) Mortgagor Concentration. Except as disclosed in the Prospectus Supplement, (a) no Mortgagor is the Mortgagor with respect to more than one Mortgage Loan and (b) to the Seller's knowledge, no group of Mortgage Loans with affiliated Mortgagors have an aggregate principal balance equaling more than $195,500,000. (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 EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE BANK OF AMERICA MORTGAGE LOANS REPRESENTATION 6 Assignment of Leases and Rents. -------------------------------------------------------------------------------- To the extent that the related Borrower leases all or part of the related Mortgaged Property to a master lessee, which master lessee enters into leases with tenants of such related Mortgaged Property, such master lessee owns an interest in any payments due under such related leases. -------------------------------------------------------------------------------- REPRESENTATION 14 Insurance. -------------------------------------------------------------------------------- Some Loan Documents provide that the loss of rents or income, as applicable, will be insured until the earlier of (i) completion of Restoration or, in some cases, the return of rents/income to the level which existed prior to the loss, or (ii) the expiration of twelve (12) months. -------------------------------------------------------------------------------- Saugus Colony (59124) The related Borrower has $104,000,000 in replacement cost insurance while the insurable value of the Mortgaged Property is $112,000,000 and the Original Principal Balance of the Mortgage Loan is $115,000,000, however, the replacement cost insurance includes a rider providing 125% coverage for rebuilding, namely $130,000,000. -------------------------------------------------------------------------------- Boscov's Deptford Mall The related Borrower is required to maintain only (3401391) the insurance required by the Boscov's lease. Boscov's Marley Station (3401393) Boscov's Monroeville Mall (3401394) Boscov's Montgomery Mall (3401395) Boscov's Owings Mills (3401396) Boscov's Oxford Valley Mall (3401397) Boscov's South Hills Village (3401398) Boscov's White Marsh (3401399) -------------------------------------------------------------------------------- Saugus Colony (59124) The related Mortgaged Property is located in the State of California, however the related Loan Best Western Laguna Documents do not require seismic insurance. Brisas (59610) Leamington Building (59625) Downey Landing (59643) Country Club Apartments (59795) McFadden Plaza (59802) Yorba Canyon Center (59808) Henry's Farmers Market (59809) Melrose Garden Apartments (3400039) Adolfo Self Storage (3400133) Sherman Plaza (3400163) San Rafael Autodesk (3400323) Venice & Western Retail (3401439) 2165 Francisco Blvd (3401628) -------------------------------------------------------------------------------- RVS Chickasaw (3220308) The related Mortgaged Property is located in the State of Florida, however the related Loan Documents do not require windstorm insurance. -------------------------------------------------------------------------------- Country Club Apartments The related Borrower is not required to maintain (59795) terrorism insurance. RVS Chickasaw (3220308) -------------------------------------------------------------------------------- One Campus Drive (3400144) The related Borrower is not required to expend more than (i) 1.5x the Adjusted Insurance Premium Amount (defined below) or (ii) $150,000 whichever is greater per year to maintain insurance premiums for all risk and business income interruption insurance without any exclusion for terrorism. "Adjusted Insurance Premium Amount" means (i) with respect to the first Loan Year (as defined in the related Mortgage Loan agreement), the Insurance Premiums payable for such Loan Year allocable to the insurance coverages described in Section 3.3(a)(i) and (iii) of the Mortgage Loan agreement, inclusive of Terrorism Insurance, and (ii) for each succeeding Loan Year, the greater of (x) the amount of the Insurance Premiums payable for the first Loan Year allocable to the insurance coverages described in Section 3.3(a)(i) and (iii) of the Mortgage Loan agreement, inclusive of Terrorism Insurance, and (y) the product obtained by multiplying the amount of the Insurance Premiums payable for the first Loan Year allocable to the insurance coverages described in Section 3.3(a)(i) and (iii) of the Mortgage Loan agreement, inclusive of Terrorism Insurance, by a fraction, the numerator of which will be the Price Index (as defined in the Mortgage Loan agreement) for the most recent month of the then-current Loan Year and the denominator of which will be the Price Index as of the date of the closing of the related Mortgage Loan. -------------------------------------------------------------------------------- Herald Center (3401551) The related Borrower is not required to expend more than $180,000 per fiscal year to maintain terrorism insurance. -------------------------------------------------------------------------------- The Shops at Fair Lakes Annual terrorism insurance premiums are capped at (59662) 200% of the cost of the terrorism insurance premium as of the closing of the related Mortgage Loan. Fairfax Retail (59663) Fair Lakes Promenade As an alternative to the policies required to be (59665) maintained pursuant to related Loan Documents, the related Borrower may maintain (or cause to be maintained) insurance policies which (i) have coverages, deductibles and/or other related provisions other than those required by the Loan Documents and/or (ii) are provided by insurance companies not meeting the credit rating required by the Loan Documents (any such policy, "Non-Conforming Policy"), provided, that, prior to obtaining such Non-Conforming Policies (or permitting such Non-Conforming Policies to be obtained), the related Borrower will have (1) received the related mortgagee's prior written consent thereto and (2) if required by the related mortgagee, confirmed that the mortgagee has received a Rating Agency confirmation with respect to any such Non-Conforming Policy. -------------------------------------------------------------------------------- Rushmore Mall (3219702) Except with respect to the companies issuing Policies for earthquake insurance, flood hazard insurance and terrorism insurance, the insurance policies will be issued by insurance companies having a claims paying ability rating of "AA" or better by at least two Rating Agencies, one of which must be S&P or such other Rating Agencies approved by the mortgagee; provided, however, in the event the insurance policies are obtained from a syndicate of five (5) or more insurance companies, not less than 60% of such insurers may have a claims paying ability rating of "A" by the Rating Agencies if (i) the primary layer of coverage is obtained from insurers having a claims paying ability rating of "A" or better by the Rating Agencies and (ii) the balance of the companies providing such insurance have a claims paying ability rating of "BBB" or better by the Rating Agencies. The mortgagee will receive notice 15 days prior to the expiration date of the insurance policies in the event that the insurance policies have not been renewed. -------------------------------------------------------------------------------- REPRESENTATION 19 Environmental Conditions. -------------------------------------------------------------------------------- Cathedral City Marketplace The related Mortgagor has not agreed to indemnify (59817) the related mortgagee for losses resulting from a breach of environmental representations, warranties or covenants given by the Mortgagor. Instead, the related Mortgagor has provided the related mortgagee with an environmental insurance policy. -------------------------------------------------------------------------------- REPRESENTATION 22 Whole Loan; Interest Only; No Equity Participation or Contingent Interest. -------------------------------------------------------------------------------- Lockers Self Storage The monthly payments on the related Mortgage Loan (59398) are interest only for 1 year. Garland Firewheel (59798) -------------------------------------------------------------------------------- Brittany Woods Apartments (59512) Baylor Medical Plaza (59612) Tenaya Village Center (59660) 88 Willett Street (59707) The monthly payments on the related Mortgage Loan are interest only for 2 years. Flamingo Sandhill (59765) Business Exchange Building (3400285) Cedar Hill Pointe (3400289) Cedar Ridge Apartments (3401203) -------------------------------------------------------------------------------- RCC Office Portfolio (59508) Leamington Building (59625) Eagle River Hilton Garden Inn (59769) Securlock at Vista Ridge (59784) Eagle River Office Building III (59791) Raley's Newark (59797) Barnett Center (59800) McFadden Plaza (59802) The monthly payments on the related Mortgage Loan are interest only for 3 years. Yorba Canyon Center (59808) Henry's Farmers Market (59809) MJ Murdock (3400011) Signature Self Storage (3400057) New Hampshire Retail Portfolio (3400299) London Park Apartments (3401225) Murdock Retail & Theater Center (3402023) -------------------------------------------------------------------------------- Fifth Third Center - The monthly payments on the related Mortgage Loan Columbus, OH (59770) are interest only for 4 years. -------------------------------------------------------------------------------- Windsor Townhomes (59630) The Shops at Fair Lakes (59662) Fairfax Retail (59663) Fair Lakes Promenade (59665) Uptown Center (59728) West Trop Storage (59762) Centennial Plaza (59764) The monthly payments on the related Mortgage Loan are interest only for 5 years. Republic Place (59799) Empire Terrace Apts (59815) Adolfo Self Storage (3400133) Sherman Plaza (3400163) Greenway Village Apartments (3401265) Herald Center (3401551) -------------------------------------------------------------------------------- DEA Warehouse/Tech Ops The monthly payments on the related Mortgage Loan Building (59761) are interest only until hyperamortization which begins after the 9th year. -------------------------------------------------------------------------------- Saugus Colony (59124) Downey Landing (59643) Cathedral City Marketplace (59817) 2856-2860 Steinway Street (3400009) One Campus Drive (3400144) Bowen Building (3400190) The loan is interest only for the entire term. Hedwig Village (3400274) Venice & Western Retail (3401439) South Bank (3401474) Rushmore Mall (3219702) Southern Hills Mall (3219703) -------------------------------------------------------------------------------- REPRESENTATION 24 Waivers and Modification. -------------------------------------------------------------------------------- One Stamford Forum The related Mortgage Loan with an initial principal (3401226) balance of $134,000,000 is being split into a note A and a note B with initial principal balances of $100,000,000 and $34,000,000, respectively. The note B will not be included in the Trust Fund. -------------------------------------------------------------------------------- FBI Regional HQ Building The payment date and maturity date have been (59458) changed from the 10th of the month to the 1st. -------------------------------------------------------------------------------- FBI Regional HQ Building A springing member is being added to the ownership (59458) structure in the event of bankruptcy or insolvency of the special purpose entity member of the borrower. Such springing member will be an independent director. -------------------------------------------------------------------------------- Eagle River Hilton Garden The property manager is changing from Johnson Inn (59769) Brothers Hospitality LLC to a related entity, namely Eagle River Hospitality LLC. -------------------------------------------------------------------------------- REPRESENTATION 26 Releases of Mortgaged Property. -------------------------------------------------------------------------------- Gateway Academy (59743) Individual Mortgaged Properties may be released upon the payment of a release price equal to 120% of the allocated loan amount and the satisfaction of certain other conditions set forth in the Loan Documents including, without limitation, the following: the payment of any applicable prepayment fee, evidence that following the release, the debt service coverage ratio for the remaining Mortgaged Properties will be at least equal to 1.20:1.00 and payment of mortgagee's costs and expenses. -------------------------------------------------------------------------------- Rushmore Mall (3219702) The related may, on a one-time basis, obtain a release of the lien of the mortgage encumbering the related Mortgaged Property ("Release Property") by substituting therefore another retail property of like kind and quality acquired by such Borrower (the "New Property"). In addition, any such substitution Southern Hills Mall is subject to, without limitation, the following (3219703) conditions precedent: (a) the related sponsor or an affiliate controls the related Borrower; (b) no event of default exists (other than an event of default which would be cured by the substitution of the New Property); (c) receipt by the mortgagee of a FIRREA appraisal of the New Property dated no more than 180 days prior to the substitution by a national appraisal firm, indicating that the fair market value of the New Property is not less than one hundred ten percent of the greater of (i) the appraised value of the Release Property and (ii) the fair market value of the Release Property as of the date immediately preceding the substitution; and (d) the mortgagee will receive confirmation from the rating agencies that such substitution will not result in a downgrade, withdrawal or qualification of any ratings issued, or to be issued, in connection with a securitization involving the related Mortgage Loan. -------------------------------------------------------------------------------- REPRESENTATION 27 Defeasance. -------------------------------------------------------------------------------- With respect to certain of the Mortgage Loans, the substitute collateral constituting "government securities" is required to be in an amount sufficient to make all scheduled payments through the end of the prepayment lockout period rather than through the maturity date of the related Mortgage Loan. -------------------------------------------------------------------------------- Rushmore Mall (3219702) The related Borrower is obligated to pay servicing fees relating to the defeasance of the Mortgage Southern Hills Mall Loan, however such fees will not exceed $15,000. (3219703) -------------------------------------------------------------------------------- REPRESENTATION 30 Single-Purpose Entity. -------------------------------------------------------------------------------- The mortgage lender typically does not require that a borrower have an outside independent director or member in connection with mortgage loans with an original principal balance of less than $30,000,000. -------------------------------------------------------------------------------- Hedwig Village (3400274) The related Mortgage Loan has an original principal balance of $33,900,000.00, however no independent director was required. -------------------------------------------------------------------------------- London Park Apartments Pursuant to the related Loan Documents, the related (3401225) Borrower previously owned that certain property located approximately at 6151 Mockingbird Lane, Dallas, Texas (the "Previously Owned Property"), however the related Borrower no longer owns any interest in the Previously Owned Property and the related Borrower has no material contingent or actual obligations related to the Previously Owned Property. -------------------------------------------------------------------------------- Cedar Hill Pointe (3400289) Pursuant to the related Loan Documents, the related Borrower previously owned certain pad sites (the "Previously Owned Property"), however the related Borrower no longer owns any interest in the Previously Owned Property and the related Borrower and the borrower principal have recourse liability for losses incurred by mortgagee due to Borrower's prior ownership of the Previously Owned Property. -------------------------------------------------------------------------------- REPRESENTATION 32 Litigation or Other Proceedings. -------------------------------------------------------------------------------- Bowen Building (3400190) The related Borrower is a defendant in a case brought by a construction company. The Borrower is currently seeking settlement of the case and reserved $2,100,000 in relation to such litigation in the Mortgage Loan agreement. -------------------------------------------------------------------------------- Signature Self Storage The related Borrower is a defendant in two (2) (3400057) cases. In one case a law firm is seeking $426,872.15 seeking payment of legal fees. In the other case a former real estate investment program sponsor seeking compensation and reimbursements and an accounting of such program. The Borrower estimates that its ultimate liability to the former real estate investment program sponsor would not exceed $500,000. The Borrower is currently seeking settlement of both cases. -------------------------------------------------------------------------------- REPRESENTATION 41 Non-Recourse Exceptions. -------------------------------------------------------------------------------- Downey Landing (59643) Eagle River Hilton Garden Inn (59769) Securlock at Vista Ridge (59784) Eagle River Office Building III (59791) Temple Street Garage (59793) Garland Firewheel (59798) Yorba Canyon Center (59808) Henry's Farmers Market (59809) MJ Murdock (3400011) Signature Self Storage (3400057) The borrower principal is not a natural person. Sussex-Minneapolis Airport Marriott (3400064) Sussex-Phoenix Airport Marriott (3400086) One Campus Drive (3400144) Sherman Plaza (3400163) Bowen Building (3400190) Nottingham Village (3400229) Ladera Ranch Self Storage (3400287) One Stamford Forum (3401226) Venice & Western Retail (3401439) Murdock Retail & Theater Center (3402023) -------------------------------------------------------------------------------- FBI Regional HQ Building (59458) Cathedral City Marketplace (59817) Hedwig Village (3400274) Cedar Hill Pointe (3400289) Boscov's Deptford Mall (3401391) Boscov's Marley Station (3401393) Boscov's Monroeville Mall (3401394) Boscov's Montgomery Mall There is no borrower principal in connection with (3401395) these Mortgage Loans. Boscov's Owings Mills (3401396) Boscov's Oxford Valley Mall (3401397) Boscov's South Hills Village (3401398) Boscov's White Marsh (3401399) South Bank (3401474) Rushmore Mall (3219702) Southern Hills Mall (3219703) -------------------------------------------------------------------------------- REPRESENTATION 42 Separate Tax Parcels. -------------------------------------------------------------------------------- RCC Office Portfolio - Park The Colleyville Property is a condominium unit and Forest Building A&B (59508) is not a separate tax lot. -------------------------------------------------------------------------------- Centennial Plaza (59764) The related Mortgaged Property is assessed under the same tax parcel number as an adjoining parcel. The related Borrower has covenanted to take commercially reasonable steps to cause the county to issue a separate tax parcel number for the Mortgaged Property. A recourse carveout was added for losses which may result from the related Mortgaged Property's failure to be assessed as a separate tax parcel and taxes for the entire parcel have been and will continue to be escrowed until such Mortgaged Property is assessed as a separate tax parcel. -------------------------------------------------------------------------------- REPRESENTATION 43 Financial Statements. -------------------------------------------------------------------------------- Some Loan Documents provide that annual financial statements will be audited by an upon the request of the holder of the Mortgage Loan only following the occurrence of an event of default under such Loan Documents or only if financial statements are not delivered in a timely fashion. -------------------------------------------------------------------------------- Gateway Academy (59743) The original principal balance of the related Mortgage Loan was greater than $20,000,000, Rushmore Mall (3219702) however annual financial statements are not required to be audited by an independent certified Southern Hills Mall (3219703) public accountant. -------------------------------------------------------------------------------- REPRESENTATION 44 Fee/Leasehold Properties. -------------------------------------------------------------------------------- Best Western Laguna Brisas The related Mortgaged Property may only be used (59610) for the operation of hotel/hospitality business. The related leasehold mortgage is subordinate to the existing fee mortgage pursuant to the terms of the ground lease, however the existing fee mortgagee delivered a non-disturbance and attornment agreement in favor of Bank of America, N.A., its successors and assigns, on the closing date. Ground lease has been amended to make future subordination of the leasehold mortgage interest conditional upon the relevant fee mortgagee's delivery of a non-disturbance and attornment agreement. -------------------------------------------------------------------------------- Downey Landing (59643) The related landlord's right, title and interest in the related Mortgaged Property are and will be superior to all leasehold mortgages. The related landlord's consent will be required for assignments. The related tenant is required to (a) use the related Mortgaged Property as a retail shopping center and then only for the uses expressly described on Exhibit H of the Ground Lease (the uses expressly permitted under the Downey Landing Specific Plan, No. SP-01-01, except for dry cleaners) and (b) neither use nor permit the use of such Mortgaged Property for any other use without the prior written consent of the related landlord, which consent such landlord may grant or withhold in its sole and absolute discretion. -------------------------------------------------------------------------------- Temple Street Garage Initial term of the related Ground Lease will (59793) expire March 31, 2013. The related tenant will have two options to extend the related Ground Lease, with the first extension expiring March 31, 2023 and the second extension expiring March 31, 2033. The related tenant is not allowed to assign or sublet the related Ground Lease unless each of the City and the related leasehold mortgagee approves such assignment in writing; provided that the related Ground Lease may be assigned as security for any loan or in a foreclosure (or deed in lieu thereof) without a requirement for approval or consent. -------------------------------------------------------------------------------- BACM 2006-3 SECURITIZATION SCHEDULE IIA EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE BRIDGER MORTGAGE LOANS Schedule IIA (6) Assignment of Leases and Rents To the extent that the related Mortgagor leases all or part of the related Mortgaged Property to a master lessee, which master lessee enters into leases with tenants of such related Mortgaged Property, such master lessee owns an interest in any payments due under such related leases. Schedule IIA (9) Mortgage Lien With respect to the Heisman Square Mortgage Loan (Loan No. 17391), two restaurant tenants potentially violate a covenants, conditions and restrictions document recorded against the Mortgaged Property in favor of an Albertson's grocery store. However, (i) Albertson's has not formally protested the condition and (ii) the Mortgagor was required to deposit $50,000 at the closing of the Mortgage Loan as reserves to cover 18 months of rent for the two restaurant tenants. Schedule IIA (14) Insurance With respect to each Bridger Mortgage Loan, the related Mortgage requires the Mortgagor to maintain such insurance as the mortgagee may require, and thus permits the mortgagee to require the maintenance of the insurance described in this section. With respect to the Sandpiper Apartments Mortgage Loan (Loan No. 16992), the related hazard insurance policy covering the Mortgaged Property contains a co-insurance clause, but the Mortgagor was required to (i) insure the Mortgaged Property for its appraised value ($4.25MM; which was 21% greater the outstanding principal balance of such Mortgage Loan) and (ii) obtain an annual inflation guard endorsement. With respect to the Comfort Suites - St. Augustine Mortgage Loan (Loan No. 18075), the related hazard insurance policies (including windstorm insurance) (i) cover 100% of the replacement cost of the improvements located on the related Mortgaged Property but (ii) contain a 90% co-insurance clause with respect to the contents of such Mortgaged Property. Schedule IIA (17) Additional Collateral The Loan Documents with respect to the Sandpiper Apartments Mortgage Loan (Loan No. 16992) permit the Mortgagor, at any time more than twenty-four months after the securitization of such Mortgage Loan, to incur subordinate debt secured by the Mortgaged Property provided that the mortgagee has approved such subordinate debt in its reasonable discretion and the Mortgagor has satisfied certain financial criteria and other requirements. Schedule IIA (19) Environmental Conditions The Environmental Report for the Mortgaged Property securing the Milrand Retail Mortgage Loan (Loan No. 13732) is dated more than twelve months prior to the Closing Date. Schedule IIA (22) Whole Loan; Interest Only; No Equity Participation or Contingent Interest Each of the following Mortgage Loans provides for interest-only payments without principal amortization for the first year of such Mortgage Loan's term: Loan No. Mortgage Loan -------- ------------- 17595 Westown Gardens Apartments 17596 Queensdale Apartments Each of the following Mortgage Loans provides for interest-only payments without principal amortization for the first two years of such Mortgage Loan's term: Loan No. Mortgage Loan -------- ------------- 17391 Heisman Square Each of the following Mortgage Loans provides for interest-only payments without principal amortization for the first three years of such Mortgage Loan's term: Loan No. Mortgage Loan -------- ------------- 17815 River Manor 17402 Bank of America Building 13732 Milrand Retail 18227 U-Store America Schedule IIA (23) Transfers and Subordinate Debt With respect to the Sandpiper Apartments Mortgage Loan (Loan No. 16992): (i) secured subordinate debt in the amount of $155,000 was funded and existed at the origination of such Mortgage Loan, but such secured debt was subsequently satisfied and the related subordinate lien encumbering the Mortgaged Property was released; and (ii) the Loan Documents permit the Mortgagor, at any time more than twenty-four months after the securitization of such Mortgage Loan, to incur subordinate debt secured by the Mortgaged Property provided that the mortgagee has approved such subordinate debt in its reasonable discretion and the Mortgagor has satisfied certain financial criteria and other requirements. With respect to the U-Store America Mortgage Loan (Loan No. 18227), the Mortgagor consists of two limited liability companies (the "TIC Borrowers") that own the applicable Mortgaged Property as tenants-in-common. The related Loan Documents permit one of the TIC Borrowers to transfer its interest in the Mortgage Property (2.33%) to the other TIC Borrower provided that certain conditions set forth in the Loan Documents are satisfied. The Loan Documents with respect to the Heisman Square Mortgage Loan (Loan No. 17391): (i) require the mortgagee to provide the Mortgagor with a list of information required for the mortgagee's review in connection with a proposed transfer and, upon receipt, review such information and respond to the Mortgagor's transfer request within 60 days; and (ii) permitted the sole member of the Mortgagor to transfer up to 100% of its interest in the Mortgagor to its members provided that certain conditions were satisfied and such transfers were completed within 30 days after the origination date of the Mortgage Loan (which transfers were effected on or about March 13, 2006). Schedule IIA (25) Inspection The Mortgaged Property with respect to the Milrand Retail Mortgage Loan (Loan No. 13732) has not been inspected by or on behalf of the related originator within the 12 months prior to the Closing Date. Schedule IIA (26) Releases of Mortgaged Property In the case of the Sandpiper Apartments Mortgage Loan (Loan No. 16992), the related Loan Documents provide that an unimproved 4.8-acre parcel of the Mortgaged Property (the "Release Parcel") may be released upon the satisfaction of certain financial and other conditions, including, among other things, (i) the remaining Mortgaged Property maintaining a minimum debt-service-coverage ratio of 1.20 to 1.00 and a maximum loan-to-value ratio of 80%, (ii) the mortgagee's receipt of an acceptable survey reflecting the Release Parcel and its confirmation that the Release Parcel is not necessary to the use or operation of, or the zoning applicable to, the remaining Mortgaged Property and that the release of the Release Parcel will not materially and adversely affect the ingress and egress to and from the remaining Mortgaged Property, and (iii) the mortgagee's receipt of such endorsements to the related title insurance policy required to confirm that the Mortgage remains a valid first-priority lien on the remaining Mortgaged Property. The Mortgagor has exercised its option to obtain the release of the Release Parcel and is currently in the process of providing the mortgagee with evidence to satisfy the conditions set forth in the Loan Documents. In the case of the Columbia Bank Building Mortgage Loan (Loan No. 16340), the related Loan Documents provide that parking easements in favor of the Mortgage Property (the "Parking Easements") may be terminated upon the satisfaction of certain financial and other conditions, including, among other things, (i) the mortgagee's receipt of not less than ninety (90) days prior written notice together with the Mortgagor's intended plans for providing replacement parking (which plans will be subject to the mortgagee's review and approval, may include either leasing new parking from an unrelated entity and/or constructing additional parking to be leased to the Mortgagor and must provide for replacement parking within a four (4) block radius of the Mortgaged Property), and (ii) the Mortgaged Property and the remaining parking maintaining a minimum debt-service-coverage ratio of 1.20 to 1.00 (or the Mortgagor must pledge additional collateral to the extent necessary to satisfy that debt-service-coverage ratio, which additional collateral must comply with the REMIC rules and be acceptable to the mortgagee). Schedule IIA (30) Single-Purpose Entity The Mortgagors with respect to the U-Store America Mortgage Loan (Loan No. 18227; $5.39MM) consist of two limited liability companies that are single-purpose entities and own the Mortgaged Property as tenants-in-common. Schedule IIA (31) No Advances With respect to the Sandpiper Apartments Mortgage Loan (Loan No. 16992), an additional loan amount ($425,000) was funded by the Seller after the origination of the Mortgage Loan upon the Mortgagor's satisfaction of certain conditions within a specified time period as set forth in the related Loan Documents. Schedule IIA (37) Escrow Deposits It is anticipated that the primary servicers of the Bridger Mortgage Loans will retain possession of the escrows, deposits and payments on behalf of the Depositor, rather than conveying possession thereof to the Depositor on the Closing Date. Schedule IIA (41) Non-Recourse Exceptions Each of the following Mortgage Loans has a non-recourse carve-out for "fraud or intentional misrepresentation" rather than "fraud or material misrepresentation": Loan No. Mortgage Loan -------- ------------- 16340 Columbia Bank Building 17815 River Manor 13732 Milrand Retail 18486 Hampton Inn Hotel & Suites - Idaho Center 18227 U-Store America 17391 Heisman Square 16992 Sandpiper Apartments 18046 Shoppes at Red Bug 18509 Maxwell Mini-Storage The Sierra Vista Square Apartments Mortgage Loan (Loan No. 15843) has a non-recourse carve-out for "fraud or misrepresentation" rather than "fraud or material misrepresentation." With respect to the Mayflower Apartments Mortgage Loan (Loan No. 18188), the Limited Guaranty of each principal of the Mortgagor terminates on the maturity date of such Mortgage Loan, but such termination does not affect the liability of the principals to the mortgagee with respect to (i) obligations created or incurred prior to such date or (ii) extensions or renewals of, interest accruing on, or fees, costs or expenses incurred with respect to, such obligations on or after such date. With respect to the Heisman Square Mortgage Loan (Loan No. 17391), an environmental insurance policy was obtained in lieu of obtaining any recourse liability against or a guaranty from a principal of the Mortgagor or other natural person for violations of environmental laws or breaches of environmental covenants. Schedule IIA (43) Financial Statements With respect to the following Bridger Mortgage Loans, the related Loan Documents require the delivery of at least quarterly operating statements as well as an annual balance sheet of the related Mortgagor (but such Loan Documents do not specifically require (i) the delivery of an annual operating statement or (ii) that the annual balance sheet include a statement of changes in financial position): Loan No. Mortgage Loan -------- ------------- 16340 Columbia Bank Building 17815 River Manor 13732 Milrand Retail 18486 Hampton Inn Hotel & Suites - Idaho Center 18046 Shoppes at Red Bug Schedule IIA (45) Fee Simple Interest The Mortgaged Property with respect to the Milrand Retail Mortgage Loan (Loan No. 13732) is subject to a condominium declaration dated April 26, 2005, as amended. Schedule IIA (53) Environmental Insurance Policies With respect to the Heisman Square Mortgage Loan (Loan No. 17391), the related secured creditor environmental insurance policy has an expiration date that is five years beyond the term of such Mortgage Loan except that, if a default occurs with respect to such Mortgage Loan, the expiration date of such insurance policy will become the maturity date of such Mortgage Loan. Bridger Mortgage Loans The following Mortgage Loans are the Bridger Mortgage Loans: Bank of America Building CGL Enterprises Coastal Mini Storage - Morehead City Columbia Bank Building Comfort Suites - St. Augustine Hampton Inn Hotel & Suites - Idaho Center Heisman Square Holcomb Street Properties Roll Up Maxwell Mini-Storage Mayflower Apartments Milrand Retail Queensdale Apartments River Manor Sandpiper Apartments Shoppes at Red Bug Sierra Vista Square Apartments U-Store America Westown Gardens Apartments