EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"), is
dated and effective as of December 13, 2007, between Prudential Mortgage Capital
Funding, LLC ("PMCF"), as seller (in such capacity, together with its successors
and permitted assigns hereunder, the "Mortgage Loan Seller"), and Bear Xxxxxxx
Commercial Mortgage Securities Inc. ("BSCMSI"), as purchaser (in such capacity,
together with its successors and permitted assigns hereunder, the "Purchaser").
RECITALS
PMCF desires to sell, assign, transfer, set over and otherwise convey
to BSCMSI, without recourse, representation or warranty, other than as set forth
herein, and BSCMSI desires to purchase, subject to the terms and conditions set
forth herein, the multifamily and commercial mortgage loans (collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"), as such schedule may be amended from time to time
pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the primary assets of
which will be a segregated pool of multifamily and commercial mortgage loans
that includes the Mortgage Loans and certain other commercial and multifamily
mortgage loans (collectively, the "Trust Mortgage Loans"). Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., Fitch,
Inc., and DBRS, 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 December 1, 2007 (the "Pooling and Servicing
Agreement"), among BSCMSI, as depositor (in such capacity, the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such capacity, a
"Master Servicer"), Xxxxx Fargo Bank, National Association, as a master servicer
(in such capacity, a "Master Servicer"), as certificate administrator (in such
capacity, the "Certificate Administrator") and as tax administrator (in such
capacity, the "Tax Administrator"), Centerline Servicing Inc., as a special
servicer (a "Special Servicer"), and LaSalle Bank National Association, as
trustee (the "Trustee"). Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement as in full force and effect on the Closing Date (as defined in Section
1 hereof). It is anticipated that BSCMSI will transfer the Mortgage Loans to the
Trust contemporaneously with its purchase of the Mortgage Loans hereunder.
BSCMSI intends to sell the Registered Certificates to Bear, Xxxxxxx &
Co. Inc. ("BSC") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"; and
together with BSC in such capacity, the "Underwriters"), pursuant to an
underwriting agreement, dated the date hereof (the "Underwriting Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the remaining
Certificates (the "Non-Registered Certificates") to BSC and Xxxxxx Xxxxxxx
(together in such capacities, the "Initial Purchasers") pursuant to a
certificate purchase agreement, dated the date hereof (the "Certificate Purchase
Agreement"), among BSCMSI and
the Initial Purchasers. The Registered Certificates are more fully described in
the prospectus dated November 30, 2007 (the "Base Prospectus"), and the
supplement to the Base Prospectus dated December 13, 2007 (the "Prospectus
Supplement"; and, together with the Base Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The Non-Registered
Certificates are more fully described in the private placement memorandum dated
the date hereof (the "Memorandum"), as it may be amended or supplemented at any
time hereafter.
PMCF will indemnify the Depositor, the Underwriters, the Initial
Purchasers and certain related parties with respect to the disclosure regarding
the Mortgage Loans that is 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 the date
hereof (the "Indemnification Agreement"), among PMCF, the Depositor, the
Underwriters and the Initial Purchasers.
As used herein, "Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(January 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
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 Mortgage Loan Seller agrees to
sell, assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, representation or warranty, other than as set forth herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms
and conditions set forth herein, the Mortgage Loans. The purchase and sale of
the Mortgage Loans shall take place on December 27, 2007 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). As of
the Cut-off Date, the Mortgage Loans will have an aggregate principal balance,
after application of all payments of principal due on the Mortgage Loans on or
before such date, whether or not received, of $524,441,738, subject to a
variance of plus or minus 5%. The purchase price for the Mortgage Loans shall
equal the amount set forth as such purchase price in a letter dated as of
December 27, 2007, between the parties to this Agreement, which purchase price
excludes accrued interest and applicable deal expenses. The Purchaser shall pay
such purchase price, plus interest accrued on the Mortgage Loans from the
Cut-off Date to the Closing Date and any applicable deal expenses, to the
Mortgage Loan Seller on the Closing Date by wire transfer in immediately
available funds or by such other method as shall be mutually acceptable to the
parties hereto.
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 the other conditions to the
Mortgage Loan Seller's obligations set forth herein, the Mortgage Loan Seller
does hereby sell, assign, transfer, set over and otherwise convey to the
Purchaser, without recourse, representation or warranty, other than
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as set forth herein, all of the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans and all documents included in the
related Mortgage Files and Servicing Files. Such assignment includes all
scheduled payments of principal and interest under and proceeds of the Mortgage
Loans received after their respective Cut-off Dates (other than scheduled
payments of interest and principal due on or before their respective Cut-off
Dates, which shall belong and be promptly remitted to the Mortgage Loan Seller)
together with all documents delivered or caused to be delivered hereunder with
respect to such Mortgage Loans by the Mortgage Loan Seller (including all
documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral). The Purchaser shall be entitled to receive all
scheduled payments of principal and interest due on the Mortgage Loans after
their respective Cut-off Dates, and all other recoveries of principal and
interest collected thereon after their respective Cut-off Dates (other than
scheduled payments of principal and interest due on the Mortgage Loans on or
before their respective Cut-off Dates and collected after such respective
Cut-off Dates, which shall belong to the Mortgage Loan Seller). In no event,
however, shall such conveyance and assignment constitute or be construed as an
assumption by the Purchaser of, in the case of any Mortgage Loan that is part of
a Mortgage Loan Group, any obligation or liability that is imposed only on the
initial holder of such Mortgage Loan under the terms of the related Mortgage
Loan Group Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Mortgage Loan Seller shall not take any
action inconsistent with the Purchaser's ownership of the Mortgage Loans. Except
for actions that are the express responsibility of another party hereunder or
under the Pooling and Servicing Agreement, and further except for actions that
the Mortgage Loan Seller is expressly permitted to complete subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is intended by the parties hereto to constitute a
sale by the Mortgage Loan Seller of all the Mortgage Loan Seller's right, title
and interest in and to such Mortgage Loans and such other related rights and
property by the Mortgage Loan Seller to the Purchaser. Furthermore, it is not
intended that such conveyance be a pledge of security for a loan. If such
conveyance is determined to be a pledge of security for a loan, however, then:
(i) this Agreement shall constitute a security agreement under applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to the Purchaser a
first priority security interest in all of the Mortgage Loan Seller's right,
title and interest in and to the Mortgage Loans and all amounts payable to the
holder(s) of the Mortgage Loans in accordance with the terms thereof (other than
scheduled payments of interest and principal due and payable on such Mortgage
Loans on or prior to their respective Cut-off Dates or, in the case of a
Replacement Pooled Mortgage Loan, on or prior to the related date of
substitution); (iii) the assignment by BSCMSI to the Trustee of its interests in
the Mortgage Loans as contemplated by Section 15 hereof shall be deemed to be an
assignment of any security interest created hereunder; (iv) the possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes with respect
to the Mortgage Loans subject hereto from time to time and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or person designated by such secured party for the purpose of
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perfecting such security interest under applicable law; and (v) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, securities intermediaries, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. The Mortgage Loan Seller and the Purchaser shall,
to the extent consistent with this Agreement, take such actions as may be
reasonably necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would 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.
(c) In connection with the Mortgage Loan Seller's assignment pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in
clause (i) of the definition of "Mortgage File", and, on or before the date that
is 45 days following the Closing Date, the remainder of the Mortgage File for
each Mortgage Loan and any Additional Collateral (other than original Letters of
Credit and Reserve Funds, which shall be transferred to the Trustee or to the
applicable Master Servicer) for each Mortgage Loan. Notwithstanding the
preceding sentence, if the Mortgage Loan Seller cannot so deliver, or cause to
be delivered, as to any Mortgage Loan (exclusive of any Mortgage Loan that
constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the original or a copy
of any of the documents and/or instruments referred to in clauses (ii), (iii),
(vii) and (ix)(A) of the definition of "Mortgage File", 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, then (subject to the obligation of the Mortgage Loan Seller to
nonetheless (1) from time to time make or cause to be made reasonably diligent
efforts to obtain such document or instrument (with such evidence) if it is not
returned within a reasonable period after the date when it was transmitted for
recording and (2) deliver such document or instrument to the Trustee or a
Custodian appointed thereby (if such document or instrument is not otherwise
returned to the Trustee or such Custodian) promptly upon the Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or instrument,
certified by the Mortgage Loan Seller or title agent as being a copy of the
document deposited for recording or filing and (in the case of such clause (ii))
accompanied by an Officer's Certificate of the Mortgage Loan Seller or a
statement from the title agent to the effect that such original Mortgage has
been sent to the appropriate public recording official for recordation, has been
delivered to the Trustee on or before the date that is 45 days following the
Closing Date, the delivery requirements of this subsection 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, and if the Mortgage
Loan Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the definition of
"Mortgage File", because such document or instrument has been delivered for
recording or filing, as the case may be, then (subject to the obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be
made reasonably diligent efforts to obtain such document or instrument (with
such evidence) if it is not returned within a reasonable period after the date
when it was
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transmitted for recording and (2) deliver such document or instrument to the
Trustee or a Custodian appointed thereby (if such document or instrument is not
otherwise returned to the Trustee or such Custodian) promptly upon the Mortgage
Loan Seller's receipt thereof), so long as a copy of such document or
instrument, certified by the Mortgage Loan Seller, a title agent or a recording
or filing agent as being a copy of the document deposited for recording or
filing and accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a statement from the title agent that such document or instrument has been
sent to the appropriate public recording official for recordation (except that
such certification shall not be required if the Trustee is responsible for
recordation of such document or instrument under the Pooling and Servicing
Agreement and the Mortgage Loan Seller has delivered the original unrecorded
document or instrument to the Trustee on or before the date that is 45 days
following the Closing Date), has been delivered to the Trustee on or before the
date that is 45 days following the Closing Date, the delivery requirements of
this subsection 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. In addition, with respect to each Mortgage Loan (exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage Loan) under
which any Additional Collateral is in the form of a Letter of Credit as of the
Closing Date, the Mortgage Loan Seller shall cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Trustee the Mortgage Loan Seller's rights as the
beneficiary thereof and drawing party thereunder. Furthermore, with respect to
each Mortgage Loan, if any, as to which there exists a secured creditor impaired
property insurance policy or pollution limited liability environmental
impairment policy covering the related Mortgaged Property, the Mortgage Loan
Seller shall cause such policy, within a reasonable period following the Closing
Date, to inure to the benefit of the Trustee for the benefit of the
Certificateholders (if and to the extent that it does not by its terms
automatically inure to the holder of such Mortgage Loan). For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
(d) If the Mortgage Loan Seller receives written notice that any
assignment or other instrument of transfer with respect to the Mortgage Loans is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Mortgage Loan Seller shall prepare or cause the preparation of a
substitute therefor or cure such defect, as the case may be. The Mortgage Loan
Seller shall be responsible for paying, pursuant to a separate agreement and not
pursuant to this Agreement, an upfront fee to the Trustee in connection with
recording and/or filing any and all assignments and other instruments of
transfer with respect to the Mortgage Loans that are required to be recorded or
filed, as the case may be, under the Pooling and Servicing Agreement; provided
that the Mortgage Loan Seller shall not be responsible for actually recording or
filing any such assignments or other instruments of transfer or for costs and
expenses that the related Borrowers have agreed to pay. With respect to each
Mortgage, Assignment of Leases and UCC Financing Statement that has been
recorded in the name of MERS or its designee (if any), the Mortgage Loan Seller
shall take all actions as are necessary to cause the Trustee to be shown as the
owner of such Mortgage, Assignment of Leases or UCC Financing Statement on the
records of MERS.
(e) In connection with the Mortgage Loan Seller's assignment pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver
to and deposit with, or
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cause to be delivered to and deposited with, the applicable Master Servicer, on
or before the date that is 45 days after the Closing Date, in the case of the
items in clause (i) below, and 20 days after the Closing Date, in the case of
the items in clause (ii) below, the following items (except to the extent that
any of the following items are to be retained by a Primary Servicer or
Sub-Servicer that will continue to act on behalf of the applicable Master
Servicer as contemplated by the Pooling and Servicing Agreement and a Primary
Servicing Agreement or Sub-Servicing Agreement and except to the extent that any
of the following items relate to any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan): (i) originals or copies of all
financial statements, appraisals, environmental/engineering reports, transaction
screens, seismic assessment reports, leases, rent rolls, insurance policies and
certificates, major space leases, legal opinions and tenant estoppels and any
other relevant documents relating to the origination and servicing of any
Mortgage Loan that are reasonably necessary for the ongoing administration
and/or servicing of the applicable Mortgage Loan in the possession or under the
control of the Mortgage Loan Seller that relate to the Mortgage Loans
transferred by it to the Purchaser and, to the extent that any original
documents are not required to be a part of a Mortgage File for any such Mortgage
Loan, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Mortgage Loan Seller that were delivered
by or on behalf of the related Borrowers in connection with the origination of
such Mortgage Loans (provided that the Mortgage Loan Seller shall not be
required to deliver any attorney-client privileged communication, draft
documents or any documents or materials prepared by it or its Affiliates for
internal uses, including without limitation, credit committee briefs or
memoranda and other internal approval documents); and (ii) all unapplied Reserve
Funds and Escrow Payments in the possession or under the control of the Mortgage
Loan Seller that relate to the Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller shall report its transfer
of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified in
Section 1 hereof. In connection with the foregoing, the Mortgage Loan Seller
shall cause all of its records to reflect such transfer as a sale (as opposed to
a secured loan) and to reflect that the Mortgage Loans are no longer property of
the Mortgage Loan Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Mortgage Loan Seller shall, within 15 days of its discovery or
receipt of notice of any error on the Mortgage Loan Schedule, amend such
Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case
may be, an amended Mortgage Loan Schedule; provided that this sentence shall not
be construed to relieve the Mortgage Loan Seller of any liability for any
related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with any examination
of the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted or has failed
to conduct any partial or complete examination of any of the Mortgage Files for,
and/or any of such other documents and records relating to, the Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law
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for a breach of the Mortgage Loan Seller's representations and warranties made
pursuant to Section 4, except as expressly set forth in Section 5.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(and, in connection with any replacement of a Defective Mortgage Loan (as
defined in Section 4(d) hereof) with one or more Replacement Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a) hereof, as of
the related date of substitution), to and for the benefit of the Purchaser, each
of the representations and warranties set forth in Exhibit B-1. The Purchaser
hereby makes, as of the Closing Date, to and for the benefit of the Mortgage
Loan Seller, each of the representations and warranties set forth in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing Date (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as of the
Closing Date, to and for the benefit of BSCMSI only, that the Mortgage Loan
Seller has not dealt with any broker, investment banker, agent or other person
(other than the Depositor, the Underwriters and the Initial Purchasers) who may
be entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and warrants that, with
respect to the Mortgage Loans and the Mortgage Loan Seller's role as
"originator" (or the role of any third party as "originator" of any Mortgage
Loan for which the Mortgage Loan Seller was not the originator) and "sponsor" in
connection with the issuance of the Registered Certificates, the information
regarding the Mortgage Loans, the related Borrowers, the related Mortgaged
Properties and/or the Mortgage Loan Seller contained in the Prospectus
Supplement complies in all material respects with the applicable disclosure
requirements of Regulation AB.
(e) For so long as the Trust is subject to the reporting requirements
of the Exchange Act, the Mortgage Loan Seller hereby agrees to provide the
Purchaser (or with respect to any Serviced Non-Pooled Pari Passu Companion Loan
that is deposited into an Other Securitization, the depositor in such Other
Securitization) and the Certificate Administrator with any Additional Form 10-D
Disclosure and any Additional Form 10-K Disclosure opposite which "Pooled
Mortgage Loan Seller" is set forth on Schedule IX and Schedule X to the Pooling
and Servicing Agreement within the time periods and in accordance with the
provisions set forth in the Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be deemed to
make to and for the benefit of the Purchaser, as of the date of substitution,
with respect to any replacement mortgage loan (a "Replacement Mortgage Loan")
that is substituted for a Defective Mortgage Loan, by the Mortgage Loan Seller
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C to this Agreement. From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a
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"Mortgage Loan" hereunder for all purposes. A "Defective Mortgage Loan" is any
Mortgage Loan as to which there is an unremedied Material Breach or Material
Document Defect.
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the Mortgage Loan
Seller of notice, of any Material Breach or Material Document Defect with
respect to any Mortgage Loan (or, if such Material Breach or Material Document
Defect, as the case may be, related to whether such Mortgage Loan is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the
related date of substitution), was a Qualified Mortgage, and provided that the
Mortgage Loan Seller discovered or received prompt written notice thereof,
within 90 days after any earlier discovery by the Mortgage Loan Seller or any
party to the Pooling and Servicing Agreement of such Material Breach or Material
Document Defect, as the case may be) (such 90-day period, in any case, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that such Material
Document Defect or Material Breach, as the case may be, does not relate to
whether the affected Mortgage Loan is or, as of the Closing Date (or, in the
case of a Replacement Mortgage Loan, as of the related date of substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect or Material
Breach, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, during the applicable Initial
Resolution Period, and (iv) that such Mortgage Loan Seller anticipates that such
Material Document Defect or Material Breach, as the case may be, will be cured
within an additional 90-day period (such additional 90-day period, the
"Resolution Extension Period"), then the Mortgage Loan Seller shall have an
additional period equal to any such applicable Resolution Extension Period to
complete such correction or cure (or, upon failure to complete such correction
or cure, to repurchase the affected Mortgage Loan); and provided, further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated above (but,
in any event, no later than such repurchase would have to have been completed),
such Mortgage Loan Seller shall be permitted, during the three-month period
following the Startup Day for the REMIC Pool that holds the affected Mortgage
Loan (or during the two-year period following such Startup Day if the affected
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount. The parties hereto agree that delivery by the Trustee (or a
Custodian on its behalf) of a certification or schedule of exceptions to the
Mortgage Loan Seller pursuant to the Pooling and Servicing Agreement shall not
in and of itself constitute delivery of notice of any Material Document Defect
or knowledge of the Mortgage Loan Seller of any Material Document Defect
therein. If any Mortgage Loan is to be
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repurchased or replaced as contemplated by this subsection, the Purchaser or its
designee shall be entitled to designate the account to which funds in the amount
of the applicable Purchase Price or Substitution Shortfall Amount (as the case
may be) are to be wired. Any such repurchase or replacement of a Mortgage Loan
shall be on a whole loan, servicing released basis. Notwithstanding this
subsection, the absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or a lost note affidavit and indemnity with a copy of the
Mortgage Note) and (ii) by the first anniversary of the Closing Date of
originals or copies of the following documents (without the presence of any
factor that reasonably mitigates such absence, non-conformity or irregularity)
or of any Specially Designated Mortgage Loan Document shall be conclusively
presumed to be a Material Document Defect and shall obligate the Mortgage Loan
Seller to cure such Material Document Defect, or, failing that, repurchase the
related Mortgage Loan or REO Mortgage Loan, all in accordance with the
procedures set forth herein: (a) the Mortgage and any separate Assignment of
Leases as described by clauses (ii) and (iii) of the definition of "Mortgage
File"; (b) the title insurance policy as described in clause (viii) of the
definition of "Mortgage File" (or, if the policy has not yet been issued, an
original or copy of a written commitment "marked-up" at the closing of such
Mortgage Loan, interim binder or the pro forma title insurance policy, in each
case evidencing a binding commitment to issue such policy); or (c) the
assignment of Mortgage (and any separate Assignment of Leases) as described by
clause (iv) of the definition of "Mortgage File". For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to the other Mortgage Loan(s) that are a part of such
Cross-Collateralized Group (the "Other Crossed Loans") (without regard to this
paragraph), then the applicable Document Defect or Breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of the above
provisions, and the Mortgage Loan Seller shall be obligated to repurchase or
replace each such Other Crossed Loan in accordance with the provisions above
unless, in the case of such Breach or Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or causes
to be delivered to the Trustee an Opinion of Counsel to the effect that its
repurchase of only those Mortgage Loans as to which a Material Breach has
actually occurred without regard to the provisions of this paragraph (the
"Affected Loan(s)") and the operation of the remaining provisions of this
Section 5(a) will not result in an Adverse REMIC Event with respect to any
REMIC Pool, or an Adverse Grantor Event with respect to either Grantor
Trust Pool, under the Pooling and Servicing Agreement; and
9
(B) both of the following conditions would be satisfied if the
Mortgage Loan Seller were to repurchase or replace only the Affected Loans
and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x below the debt service coverage ratio
for the Cross-Collateralized Group (including the Affected Loan(s))
set forth in Appendix B to the Prospectus Supplement, (B) the debt
service coverage ratio for the Cross-Collateralized Group (including
the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) at the time of repurchase or replacement, and (C)
75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in which case the
Mortgage Loan Seller shall) cause to be delivered, to the applicable Master
Servicer an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of the Mortgage Loan Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the Purchaser agree
to forbear from enforcing any remedies against the other's Primary Collateral
but each is permitted to exercise remedies against the Primary Collateral
securing its respective Mortgage Loans, including with respect to the Trustee,
the Primary Collateral securing the Affected Loan(s) still held by the Trustee,
so long as such exercise does not impair the ability of the Mortgage Loan Seller
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one such party would impair the ability of the other such party to
exercise its remedies with respect to the Primary Collateral securing the
Affected Loan or the Other Crossed Loans, as the case may be, held by the other
such party, then both parties shall forbear from exercising such remedies unless
and until the Mortgage Loan Documents evidencing and securing the relevant
Mortgage Loans can be modified in a manner that complies with this Agreement to
remove the threat of impairment as a result of the exercise of remedies. Any
reserve or other cash collateral or letters of credit securing any of the
Cross-Collateralized Loans shall be allocated between the Mortgage Loans in
accordance with the
10
Mortgage Loan Documents, or otherwise on a pro rata basis based upon their
outstanding Stated Principal Balances. All other terms of the Mortgage Loans
shall remain in full force and effect, without any modification thereof. The
Borrowers set forth on Schedule V to the Pooling and Servicing Agreement are
intended third-party beneficiaries of the provisions set forth in this paragraph
and the preceding paragraph. The provisions of this paragraph and the preceding
paragraph may not be modified with respect to any Mortgage Loan without the
related Borrower's consent.
All costs and expenses incurred by the Trustee and the applicable
Master Servicer with respect to any Cross-Collateralized Group pursuant to the
preceding paragraph shall be included in the calculation of Purchase Price for
the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as contemplated by
this Section 5, upon direction by the applicable Master Servicer, the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage File and a
certification to the effect that such Replacement Mortgage Loan satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan as contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself a Replacement
Mortgage Loan, in which case, absent a cure of the relevant Material Breach or
Material Document Defect, the affected 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 corresponding Deleted Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to the related date
of substitution, shall be part of the Trust Fund. 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
corresponding Deleted Mortgage Loan (if any) after the related date of
substitution, shall not be part of the Trust Fund and are to be remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly following
receipt.
If any Mortgage Loan is to be repurchased or replaced by the Mortgage
Loan Seller as contemplated by this Section 5, upon direction by the applicable
Master Servicer, the Mortgage Loan Seller shall amend the Mortgage Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if applicable, the
substitution of the related Replacement Mortgage Loan(s) and deliver or cause
the delivery of such amended Mortgage Loan Schedule to the parties to the
Pooling and Servicing Agreement. Upon any substitution of one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan, such Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms
of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by the related Mortgage Loan Seller as contemplated by
this Section 5 has been deposited in the account designated therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and further, if
applicable, upon receipt by the Purchaser (or the Trustee or a Custodian
appointed
11
thereby) of the Mortgage File for each Replacement Mortgage Loan (if any) to be
substituted for a Deleted Mortgage Loan, together with any certifications and/or
opinions required pursuant to this Section 5 to be delivered by the Mortgage
Loan Seller, the Purchaser (or the Trustee) shall (i) release or cause the
release of the Mortgage File and any Additional Collateral held by or on behalf
of the Purchaser (or the Trustee) for the Deleted Mortgage Loan to the Mortgage
Loan Seller or its designee and (ii) execute and deliver such instruments of
release, transfer and/or assignment, in each case without recourse, as shall be
provided to it and are reasonably necessary to vest in the Mortgage Loan Seller
or its designee the ownership of the Deleted Mortgage Loan, and the Purchaser
(or the applicable Master Servicer on its behalf) shall notify the affected
Borrowers of the transfers of the Deleted Mortgage Loan(s) and any Replacement
Mortgage Loan(s). In connection with any such repurchase or substitution by the
Mortgage Loan Seller, each of the applicable Master Servicer and the Special
Servicer (or other servicing agent for the Purchaser) shall deliver to the
Mortgage Loan Seller or its designee any portion of the related Servicing File,
together with any Escrow Payments, Reserve Funds and Additional Collateral, held
by or on behalf of such Master Servicer or the Special Servicer (or other
servicing agent for the Purchaser), as the case may be, with respect to the
Deleted Mortgage Loan, in each case at the expense of the Mortgage Loan Seller.
(d) It is understood and agreed that the obligations of the Mortgage
Loan Seller set forth in this Section 5 to cure a Material Breach or a Material
Document Defect, or to repurchase or replace the related Defective Mortgage
Loan(s), constitute the sole remedies available to the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage Loan.
Notwithstanding the foregoing, to the extent (but only to the extent)
that (A) the Mortgage Loan Seller represents in the representation and warranty
set forth in the final sentence of paragraph 23 or the representation and
warranty set forth in the final sentence of paragraph 29 of Exhibit C attached
hereto that the Borrower under a Mortgage Loan is required to pay, or that the
lender is entitled to charge the Borrower for, a cost or expense described in
such sentence, (B) such representation and warranty is untrue with respect to
such cost or expense, (C) the Purchaser actually incurs such cost or such
expense, (D) the Purchaser (or a Person acting on behalf of the Purchaser)
exercises efforts consistent with the Servicing Standard and the related
Mortgage Loan Documents to collect such cost or expense from the Borrower and
(E) the Borrower does not pay such cost or expense at or before the conclusion
of the efforts described in the preceding clause (D), then the Mortgage Loan
Seller hereby covenants and agrees (it being the intention of the parties that
all, and not less than all, of the conditions described in the preceding clauses
(A), (B), (C), (D) and (E) shall be precedent to such covenant and agreement) to
pay such cost or expense within 90 days following a direction by the Purchaser
(or a Person acting on behalf of the Purchaser) to do so. Also notwithstanding
the foregoing, the remedy described in the immediately preceding sentence shall
constitute the sole remedy available to the Purchaser, the Certificateholders or
the Trustee on behalf of the Certificateholders with respect to any breach of
any representation described in clause (A) of the immediately preceding
sentence, the Mortgage Loan Seller shall not otherwise have any obligation to
cure such a breach and the Mortgage Loan Seller shall not have any obligation to
repurchase or replace the affected Mortgage Loan.
12
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Austin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be true and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects the obligations of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Purchaser or its designee, all documents, funds and other assets
required to be delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, 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
in all material respects, and the Mortgage Loan 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 by it after the
Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase price
for the Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees 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 7. Closing Documents. The Purchaser or its designee shall have
received all of the following Closing Documents, in such forms as are agreed
upon and
13
acceptable to the Purchaser, the Underwriters, the Initial Purchasers and the
Rating Agencies (collectively, the "Interested Parties"), and upon which the
Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the Mortgage
Loan Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Mortgage Loan Seller, in his or her individual capacity, and dated the
Closing Date, and upon which the Interested Parties may rely, attaching
thereto as exhibits (A) the resolutions of the board of directors of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's entering into
the transactions contemplated by this Agreement and the Indemnification
Agreement, and (B) the organizational documents of the Mortgage Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage Loan
Seller issued by the Secretary of State of the State of Delaware not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v) A Certificate of the Mortgage Loan Seller substantially in the
form of Exhibit D-2 hereto, executed by an executive officer of the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated the
Closing Date, and upon which the Interested Parties may rely;
(vi) The written opinion of in-house counsel for the Mortgage Loan
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3A hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(vii) A written opinion of Cadwalader, Xxxxxxxxxx & Xxxx LLP, special
counsel for the Mortgage Loan Seller, dated the Closing Date and addressed
to the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3B hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(viii) A letter from Cadwalader, Xxxxxxxxxx & Xxxx LLP, special
counsel for the Mortgage Loan Seller, dated the Closing Date and addressed
to BSCMSI and the Underwriters, which letter shall be substantially in the
form of Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel for the Mortgage
Loan Seller to the Rating Agencies in connection with the transactions
contemplated by this Agreement, including, but not limited to, with respect
to the characterization of the transfer of the Mortgage Loans hereunder as
a true sale, with each such opinion to be addressed to the other Interested
Parties and the Trustee or accompanied by a letter signed by such counsel
stating that the other Interested Parties and the Trustee may rely on such
opinion as if it were addressed to them as of date thereof;
14
(x) One or more comfort letters from Deloitte & Touche LLP, certified
public accountants, dated the date of any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
addressed to, and in form and substance acceptable to, the Interested
Parties (other than the Rating Agencies), stating in effect that, using the
assumptions and methodology used by BSCMSI or the Underwriters, as
applicable, 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; and
(xi) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 8. Costs. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of a settlement statement
dated the Closing Date.
SECTION 9. 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 similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department (with copies to the attention of Xxxxxx
X. Cedar, Senior Managing Director, Legal Department), or such other address as
may be designated by the Purchaser to the Mortgage Loan Seller in writing, or,
if to the Mortgage Loan Seller, addressed to the Mortgage Loan Seller at Four
Gateway Center, 8th Floor, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000,
Attention: Xxxx X. Xxxxxx, or such other address as may be designated by the
Mortgage Loan Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. 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 adversely affect, the Mortgage Loan Seller, without
the consent of the Mortgage Loan Seller.
15
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 Mortgage Loan Seller delivered pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Mortgage Loan Seller to BSCMSI and by BSCMSI to the Trust,
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or 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 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. Governing Law; Consent to Jurisdiction; Waiver of Trial by
Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO
BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN 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; (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; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and take such
further actions as any other party hereto may, from time to time, reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of the
Mortgage Loan Seller under this Agreement shall not be assigned by the Mortgage
Loan Seller
16
without the prior written consent of the Purchaser, except that any person into
which the Mortgage Loan Seller may be merged or consolidated, or any person
resulting from any merger, conversion or consolidation to which the Mortgage
Loan Seller is a party, or any person succeeding to all or substantially all of
the business of the Mortgage Loan Seller, shall be the successor to the Mortgage
Loan Seller hereunder. In connection with its transfer of the Mortgage Loans to
the Trust as contemplated by the recitals hereto, BSCMSI is expressly authorized
to assign its rights under this Agreement, in whole or in part, to the Trustee
for the benefit of the registered holders and beneficial owners of the
Certificates. To the extent of any such assignment, the Trustee, for the benefit
of the registered holders and beneficial owners of the Certificates, shall be
the Purchaser hereunder. Subject to the foregoing, this Agreement shall bind and
inure to the benefit of and be enforceable by the Mortgage Loan Seller and the
Purchaser, and their respective successors and permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall provide the
Purchaser with such information about itself, the Mortgage Loans and the
underwriting and servicing procedures applicable to the Mortgage Loans as is (i)
customary in commercial mortgage loan securitization transactions, (ii) required
by a Rating Agency or a governmental agency or body or (iii) reasonably
requested by the Purchaser for use in a public or private disclosure document.
SECTION 17. 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
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized, if identified as such 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 17 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 Exhibit C hereto and each of the
capitalized terms used herein but defined in the Pooling and Servicing
Agreement, shall be interpreted in a manner consistent with this Section 17. 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, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
17
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
PMCF MLPA
EXHIBIT A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
Ex. A-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
SELLER CMSA CMSA
LOAN ID ID LOAN NO. PROPERTY NO. PROPERTY NAME (1) ADDRESS
---------------------------------------------------------------------------------------------------------------------------------
6107768 7 7 0-000 Xxxxxxxxx Xxxx 1000 Southlake Mall
6107437 9 9 9-001 11 MetroTech Center 11 MetroTech Center
6107601 18 18 HRC Portfolio 3 Various
6107601a 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxx Xxxx 0000 X. S. 31 North
6107601b 00-x 00-000 Xxxxxxxx Xxxxxx - XX Xxxxxxxxxxxx 0000 X. 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107601c 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxxx 0000 X. Xxxxx Xxxxxx
6107601d 00-x 00-000 Xxxxxxx Xxx - Xxxxxxx 000 X. Xxxxx Xxxx 120
6107601e 00-x 00-000 Xxxxxxx Xxx - Xxxxxxx 0000 Xxxxxx Xxxx
6107597 19 19 HRC Portfolio 1 Various
6107597a 19-a 19-001 Hampton Inn - Clearwater 00000 XX Xxxxxxx 00 Xxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107597b 19-b 00-000 Xxxxxxx Xxx - Xxxxxxxx Xxxx 0000 Xxxxx XX Xxxxxxx 00 Xxxxx
6107597c 00-x 00-000 Xxxxxxxx Xxxxxx - Xxxxxxxxxxx 0000 Xxxxxxx Xxxxxx
6107597d 00-x 00-000 Xxxxxxx Xxx - Xxxxxxx 0000 Hi-Pointe Drive
6107689 20 20 00-000 Xxxxxx Festival Shopping Center 0000 XX Xxxx 410
6107599 21 21 HRC Portfolio 2 Various
---------------------------------------------------------------------------------------------------------------------------------
6107599a 00-x 00-000 Xxxxxxxx Xxxxxx - Xxxxxxxx 000 X. Xxxxxxxx Xxxxxx
6107599b 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxx 000 Xxxxxx Xxxxxx
6107599c 00-x 00-000 Xxxxxxxx Xxxxxx - Xxxxxxxxxx 0000 Xxxx Xxxxxx Xxxx
6107599d 00-x 00-000 Xxxxxxx Xxx - Xxxxxxxxxx 0000 Xxxxxxx Xxxx
6107431 30 30 30-001 Temple City Marketplace 0000-0000 Xxxxxxxx Xxxxxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107466 39 39 00-000 Xxx Xxxxxxxx Senior Living 0000 Xxxxxx Xxxxxxx Xxxxxxx
6107656 40 40 00-000 Xxxxxxxx Xxxxxxxxxx 0000 X. Xxxxxxxxxx Xxxxxx
6107150 46 46 46-001 Xxxx Shopping Center 2913-3021 NE 72 Dr, 2904 NE Xxxxxx Xx,
0000 XX Xxxxxxxx Xx
6107655 47 47 47-001 Raintree Apartments 0000 X. Xxxxxxx Xxxxxxxxx
6107659 48 48 00-000 Xxxxx Xxxxx Senior Living 7858 & 0000 Xxxxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107729 50 50 00-000 Xxxxx Xxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxxxx Drive
6107429 51 51 00-000 Xxxxxxx Xxxxx and Mall 0000 Xxxxx Xxxx Xxxxxx and 000
Xxxxxxx Xxxx Xxxxx
6107700 55 55 00-000 Xxxxxxx Xxxxx Apartments 0000 Xxxx Xxxx Xxxxx
6106801 56 56 Alexandria Apartments Various
6106801a 56-a 00-000 Xxxxxxxx Apartments 0000 Xxxxx Xxxxxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------
6106801b 56-b 00-000 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx
6107245 67 67 67-001 The Mix at Southbridge 7144 & 0000 Xxxx Xxxxxxx Xxxxx
6107169 68 68 00-000 Xxxxx Xxxx Shops 0000 Xxxxxx Xxxxxx
6107657 72 72 00-000 Xxxxxxxxx Xxxxx Apartments 0000 X. Xxxxxxxxxx Xxxxxx
6107518 73 73 73-001 Town and Country Shopping Center 0000 X. 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107476 75 75 Xxxxxxx Inn - Best Western Various
6107476a 75-a 75-001 Xxxxxxx Inn 5223 Page Road
6107476b 75-b 00-000 Xxxxxxx 0000 Xxxxxx Xxxxxx
6107414 78 78 00-000 Xxxxxxxxx Xxxxxx 0000 XX Xxxxxxx 68
6107078 79 79 00-000 Xxxxx 00xx Xxxxxx Xxxxxxxxx X0 - Xxxxxxxx A 00000 X. 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107079 80 80 00-000 Xxxxx 00xx Xxxxxx Xxxxxxxxx X0 - Xxxxxxxx X 00000 X. 00xx Xxxxxx
6107556 83 83 00-000 Xxx Xxxxx Xxxx Xxxxxxxx Xxxxxx 000 Xxxx Xxx Xxxxx Xxxxxx
6107585 85 85 00-000 Xxxxxxxxx Business Center II 100, 200, & 250 Corporate Court
6107699 89 89 00-000 Xxxxxxxx Xxxxx Apartments 0000 Xxxxxxxx Xxxxx Xxxxx
6107479 91 91 91-001 Heacock Corporate Plaza 00000 Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------------
6107648 96 96 96-001 Pine Hill Portfolio 0000-0000 Xxxx Xxxxxx
6107608 97 97 BGK Portfolio Various
6107608a 97-a 97-001 Corporate Park 000 Xxxxxxxxx Xxxxx
6107608b 97-b 00-000 0000 Xxxxxx 0000 Xxxxxx Xxxxxxxxx
6107608c 00-x 00-000 000 Xxxxxxxx Xxxx 2102,2106,2108 W. Pioneer Parkway
---------------------------------------------------------------------------------------------------------------------------------
6107675 98 98 00-000 Xxxxxx Xxxxxx 720 Xxxx Drive, 6255 & 0000 Xxxxxxxxx Xxxxxx
6107444 115 115 115-001 1811 Bering 0000 Xxxxxx Xxxxx
6107236 119 119 119-001 Dollar Self Storage - Laveen 0000 X. Xxxxxxxx Xxxx
6107611 120 120 000-000 Xxxxxxxxxx Xxxxx SC 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx and 0000
X. Xxxxxxxx Xxxxxx
6107184 122 122 122-001 3200 Como 0000 Xxxx Xxxxxx XX
---------------------------------------------------------------------------------------------------------------------------------
6107408 124 124 124-001 Xxxxxxxx Medical Center 0000 Xxxxx Xxxx
6107459 125 125 000-000 Xxxxxxx Xxxxx 700, 715, 720, 735, 740 & 000 Xxxxxxx Xxxxx
6107523 133 133 133-001 Forest Oaks 0000 X.X. Xxxxx Xxxx Xxxx.
CUT-OFF MONTHLY MONTHLY FIRST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT
LOAN ID CITY STATE ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($) (4) (5) AFTER IO ($) (4) (5) DATE
---------------------------------------------------------------------------------------------------------------------------------
6107768 Xxxxxx XX 00000 70,000,000 70,000,000 380,795.54 439,620.24 1/5/2008
6107437 Xxxxxxxx XX 00000 61,000,000 61,000,000 330,367.25 NAP 11/5/2007
6107601 Various Various Various 26,965,000 26,941,047 172,036.28 NAP 12/5/2007
6107601a Xxxxxxxx Xxxx XX 00000 8,474,714 8,467,186
6107601b Xxxxxxxxxxxx XX 00000 6,163,429 6,157,954
---------------------------------------------------------------------------------------------------------------------------------
6107601c Xxxxxxxxx XX 00000 5,883,273 5,878,047
6107601d Xxxxxxx XX 00000 3,571,987 3,568,814
6107601e Xxxxxxx XX 00000 2,871,597 2,869,046
6107597 Various Various Various 26,900,000 26,876,104 171,621.58 NAP 12/5/2007
6107597a Xxxxxxxxxx XX 00000 10,998,522 10,988,752
---------------------------------------------------------------------------------------------------------------------------------
6107597b Xxxxxxxx Xxxx XX 00000 6,426,847 6,421,138
6107597c Xxxxxxxxxxx XX 00000 5,764,286 5,759,165
6107597d XxXxxxx XX 00000 3,710,345 3,707,049
6107689 Xxx Xxxxxxx XX 00000 26,800,000 26,800,000 143,559.91 166,584.12 1/5/2008
6107599 Various Various Various 26,225,000 26,201,704 167,315.10 NAP 12/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107599a Xxxxxxxxxxxx XX 00000 8,313,595 8,306,210
6107599b Xxxxxxxx XX 00000 6,623,840 6,617,956
6107599c Xxxxxxxxxx XX 00000 6,421,070 6,415,366
6107599d Xxxxxxxxxx XX 00000 4,866,495 4,862,172
6107431 Xxxxxx Xxxx XX 00000 22,500,000 22,500,000 120,335.94 139,709.17 11/1/2007
---------------------------------------------------------------------------------------------------------------------------------
6107466 Xxxxx XX 00000 19,075,000 19,058,285 122,581.09 NAP 12/5/2007
6107656 Xxxxx XX 00000 17,200,000 17,200,000 93,298.06 107,812.36 12/5/2007
6107150 Xxxxxxxxx XX 00000 15,500,000 15,429,434 92,631.59 NAP 8/5/2007
6107655 Xxxxx XX 00000 14,900,000 14,900,000 80,822.15 93,395.59 11/5/2007
6107659 Xxxxxxxxx XX 00000 14,450,000 14,450,000 82,043.89 93,434.45 12/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107729 Xxxxxx Xxxxxxx XX 00000 12,800,000 12,800,000 68,890.37 79,813.49 1/5/2008
6107429 Xxxxxxx XX 00000 12,810,000 12,792,867 86,414.01 NAP 12/5/2007
6107700 Xxxxxxxx Xxxxxxx XX 00000 11,650,000 11,650,000 65,752.38 75,020.40 12/5/2007
6106801 Xxxxxxxxxx XX 00000 11,512,500 11,512,500 59,821.03 70,137.39 10/1/2006
6106801a Xxxxxxxxxx XX 00000 6,322,738 6,322,738
---------------------------------------------------------------------------------------------------------------------------------
6106801b Xxxxxxxxxx XX 00000 5,189,762 5,189,762
6107245 Xxxxxxxxxx XX 00000 9,000,000 9,000,000 42,735.42 51,780.67 7/5/2007
6107169 Xxxxx Xxxx XX 00000 9,000,000 9,000,000 50,567.71 57,776.84 12/5/2007
6107657 Xxxxx XX 00000 8,200,000 8,200,000 44,479.31 51,398.91 12/5/2007
6107518 XxXxxxx XX 00000 8,200,000 8,200,000 44,895.00 51,721.77 10/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107476 Various NC Various 7,885,000 7,872,375 50,254.13 NAP 11/5/2007
6107476a Xxxxxx XX 00000 4,355,000 4,348,027
6107476b Xxxxxxxxxxxx XX 00000 3,530,000 3,524,348
6107414 Xxxxxxxxx XX 00000 7,546,000 7,546,000 40,740.54 47,151.28 11/5/2007
6107078 Xxxxxxxxxx XX 00000 4,250,000 4,237,490 24,991.16 NAP 10/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107079 Xxxxxxxxxx XX 00000 3,250,000 3,240,433 19,110.89 NAP 10/5/2007
6107556 Xxxxxxxx XX 00000 7,250,000 7,250,000 39,816.26 45,824.93 10/5/2007
6107585 Xxxxx Xxxxxxxxxx XX 00000 7,120,000 7,120,000 38,199.95 44,303.18 11/5/2007
6107699 Xxxxxxxx Xxxxxxx XX 00000 6,900,000 6,900,000 37,311.11 43,159.91 12/5/2007
6107479 Xxxxxx Xxxxxx XX 00000 6,700,000 6,700,000 34,701.19 40,731.57 11/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107648 Xxxxxxxxxxxx XX 00000 6,226,000 6,226,000 33,824.33 39,066.38 11/5/2007
6107608 Various Various Various 6,140,000 6,140,000 34,342.78 39,294.80 1/5/2008
6107608a Xxxxxxxxx XX 00000 4,051,458 4,051,458
6107608b Xxxxxxxxxxx XX 00000 1,256,266 1,256,266
6107608c Xxxxxxx XX 00000 832,276 832,276
---------------------------------------------------------------------------------------------------------------------------------
6107675 Xxxx XX 00000 6,000,000 6,000,000 32,292.36 37,412.57 1/5/2008
6107444 Xxxxxxx XX 00000 4,900,000 4,900,000 30,393.58 NAP 1/5/2008
6107236 Xxxxxx XX 00000 4,657,500 4,657,500 22,351.69 26,973.15 7/5/2007
6107611 Xxxxxxxxx XX 00000 4,600,000 4,600,000 24,368.82 28,382.85 12/5/2007
6107184 Xxxxxxxxxxx XX 00000 4,490,000 4,490,000 24,810.37 28,498.07 11/5/2007
---------------------------------------------------------------------------------------------------------------------------------
6107408 Xxxxxxxx XX 00000 4,250,000 4,250,000 28,404.87 NAP 1/5/2008
6107459 Xxxxxxx XX 00000 4,200,000 4,200,000 23,314.38 26,740.50 10/5/2007
6107523 Xxxxxxxxx XX 00000 3,600,000 3,600,000 19,618.75 22,636.20 11/5/2007
INTEREST MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING
SELLER INTEREST ACCRUAL DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION
LOAN ID RATE (4) BASIS OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) (4) TERM (MOS.) (4)
----------------------------------------------------------------------------------------------------------------------
6107768 6.4385% Actual/360 12/5/2017 No 120 120 360 360
6107437 6.4100% Actual/360 10/5/2017 Yes 120 118 0 0
6107601 6.5900% Actual/360 11/5/2017 No 120 119 360 359
6107601a
6107601b
----------------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 6.5900% Actual/360 11/5/2017 No 120 119 360 359
6107597a
----------------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 6.3400% Actual/360 12/5/2017 No 120 120 360 360
6107599 6.5900% Actual/360 11/5/2017 No 120 119 360 359
----------------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 6.3300% Actual/360 10/1/2017 No 120 118 360 360
----------------------------------------------------------------------------------------------------------------------
6107466 6.6600% Actual/360 11/5/2017 No 120 119 360 359
6107656 6.4200% Actual/360 11/5/2017 No 120 119 360 360
6107150 5.9700% Actual/360 7/5/2017 No 120 115 360 355
6107655 6.4200% Actual/360 10/5/2017 No 120 118 360 360
6107659 6.7200% Actual/360 11/5/2012 No 60 59 360 360
----------------------------------------------------------------------------------------------------------------------
6107729 6.3700% Actual/360 12/5/2017 No 120 120 360 360
6107429 6.4900% Actual/360 11/5/2017 No 120 119 300 299
6107700 6.6800% Actual/360 11/5/2017 No 120 119 360 360
6106801 6.1500% Actual/360 9/1/2016 No 120 105 360 360
6106801a
----------------------------------------------------------------------------------------------------------------------
6106801b
6107245 5.6200% Actual/360 6/5/2017 No 120 114 360 360
6107169 6.6500% Actual/360 11/5/2017 No 120 119 360 360
6107657 6.4200% Actual/360 11/5/2017 No 120 119 360 360
6107518 6.4800% Actual/360 9/5/2017 No 120 117 360 360
----------------------------------------------------------------------------------------------------------------------
6107476 6.5800% Actual/360 10/5/2017 No 120 118 360 358
6107476a
6107476b
6107414 6.3900% Actual/360 10/5/2017 No 120 118 360 360
6107078 5.8200% Actual/360 9/5/2017 No 120 117 360 357
----------------------------------------------------------------------------------------------------------------------
6107079 5.8200% Actual/360 9/5/2017 No 120 117 360 357
6107556 6.5000% Actual/360 9/5/2017 No 120 117 360 360
6107585 6.3500% Actual/360 10/5/2017 No 120 118 360 360
6107699 6.4000% Actual/360 11/5/2017 No 120 119 360 360
6107479 6.1300% Actual/360 10/5/2017 No 120 118 360 360
----------------------------------------------------------------------------------------------------------------------
6107648 6.4300% Actual/360 10/5/2017 No 120 118 360 360
6107608 6.6200% Actual/360 12/5/2017 No 120 120 360 360
6107608a
6107608b
6107608c
----------------------------------------------------------------------------------------------------------------------
6107675 6.3700% Actual/360 12/5/2017 No 120 120 360 360
6107444 6.3200% Actual/360 12/5/2017 No 120 120 360 360
6107236 5.6800% Actual/360 6/5/2018 No 132 126 360 360
6107611 6.2700% Actual/360 11/5/2017 No 120 119 360 360
6107184 6.5400% Actual/360 10/5/2012 No 60 58 360 360
----------------------------------------------------------------------------------------------------------------------
6107408 6.3900% Actual/360 12/5/2017 No 120 120 300 300
6107459 6.5700% Actual/360 9/5/2017 No 120 117 360 360
6107523 6.4500% Actual/360 10/5/2017 No 120 118 360 360
REMAINING CROSSED PREPAYMENT MORTGAGE
SELLER INTEREST ONLY WITH PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT
LOAN ID PERIOD (MOS.) OTHER LOANS (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE
-------------------------------------------------------------------------------------------------------------------------
6107768 360 360 LO(24)/Defeasance(92)/Open(4) Fee PMCF 0.02148% 5th
6107437 0 0 LO(26)/Defeasance(87)/Open(7) Leasehold PMCF 0.02148% 5th
6107601 360 359 LO(26)/Defeasance(92)/Open(2) Fee/Leasehold PMCF 0.07148% 5th
6107601a Fee/Leasehold PMCF
6107601b Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6107601c Fee PMCF
6107601d Fee PMCF
6107601e Fee PMCF
6107597 360 359 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.07148% 5th
6107597a Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6107597b Fee PMCF
6107597c Fee PMCF
6107597d Fee PMCF
6107689 360 360 LO(25)/Defeasance(92)/Open(3) Fee PMCF 0.02148% 5th
6107599 360 359 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.07148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107599a Fee PMCF
6107599b Fee PMCF
6107599c Fee PMCF
6107599d Fee PMCF
6107431 360 360 LO(27)/Defeasance(90)/Open(3) Fee PMCF 0.07148% 1st
-------------------------------------------------------------------------------------------------------------------------
6107466 360 359 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107656 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107150 360 355 LO(30)/Defeasance(87)/Open(3) Fee PMCF 0.02148% 5th
6107655 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107659 360 360 LO(26)/Defeasance(32)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107729 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107429 300 299 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107700 360 360 LO(23)/GRTR1% or YM(95)/Open(2) Fee PMCF 0.02148% 5th
6106801 360 360 LO(40)/Defeasance(78)/Open(2) Fee PMCF 0.02148% 1st
6106801a Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6106801b Fee PMCF
6107245 360 360 LO(31)/Defeasance(87)/Open(2) Fee PMCF 0.07148% 5th
6107169 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107657 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107518 360 360 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107476 360 358 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107476a Fee PMCF
6107476b Fee PMCF
6107414 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107078 360 357 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107079 360 357 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
6107556 360 360 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
6107585 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
6107699 360 360 LO(23)/GRTR1% or YM(95)/Open(2) Fee PMCF 0.02148% 5th
6107479 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107648 360 360 LO(27)/Flex(91)/Open(2) Fee PMCF 0.02148% 5th
6107608 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107608a Fee PMCF
6107608b Fee PMCF
6107608c Fee PMCF
-------------------------------------------------------------------------------------------------------------------------
6107675 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107444 360 360 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107236 360 360 LO(31)/Defeasance(95)/Open(6) Fee PMCF 0.02148% 5th
6107611 360 360 LO(26)/Defeasance(92)/Open(2) Fee PMCF 0.02148% 5th
6107184 360 360 LO(27)/Defeasance(31)/Open(2) Fee PMCF 0.02148% 5th
-------------------------------------------------------------------------------------------------------------------------
6107408 300 300 LO(25)/Defeasance(93)/Open(2) Fee PMCF 0.02148% 5th
6107459 360 360 LO(28)/Defeasance(90)/Open(2) Fee PMCF 0.02148% 5th
6107523 360 360 LO(27)/Defeasance(91)/Open(2) Fee PMCF 0.02148% 5th
SELLER PAYMENT GRACE PERIOD LETTER OF
LOAN ID EVENT OF LATE FEE (DAYS) CREDIT
-------------------------------------------------------------------------------------------------------------
6107768 0
6107437 0
6107601 0
6107601a
6107601b
-------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 0
6107597a
-------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 0 Leasing Reserve LOC ($1,000,000)
6107599 0
-------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 5
-------------------------------------------------------------------------------------------------------------
6107466 0
6107656 0
6107150 0 TI Reserve LOC (2,500,000)
6107655 0
6107659 0
-------------------------------------------------------------------------------------------------------------
6107729 0
6107429 0
6107700 0
6106801 5
6106801a
-------------------------------------------------------------------------------------------------------------
6106801b
6107245 0
6107169 0
6107657 0
6107518 0
-------------------------------------------------------------------------------------------------------------
6107476 0
6107476a
6107476b
6107414 0
6107078 0
-------------------------------------------------------------------------------------------------------------
6107079 0
6107556 0
6107585 0 PTC Therapeutics Rent Reserve LOC ($600,000), Tax Reserve LOC ($58,785)
6107699 0
6107479 0
-------------------------------------------------------------------------------------------------------------
6107648 0
6107608 0
6107608a
6107608b
6107608c
-------------------------------------------------------------------------------------------------------------
6107675 0
6107444 0
6107236 0
6107611 0
6107184 0
-------------------------------------------------------------------------------------------------------------
6107408 0 Improvement Reserve LOC ($127,340)
6107459 0 Leasing Reserve LOC ($150,000)
6107523 0
SELLER
LOAN ID BORROWER
---------------------------------------------------------------------------------------------------------------------------------
6107768 Southlake Mall L.L.C.
6107437 Forest City Tech Place Associates II, LLC
6107601 125Eastbay, LLC, 60Portage, LLC, 75Fremont, LLC, I-465, LLC and 78Ninethstreet, LLC
6107601a
6107601b
---------------------------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 62LaPorte, LLC, 119TCBay, LLC, 185Clearwater, LLC and 80Bloom, LLC
6107597a
---------------------------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 Xxxxxx North Loop Shopping Center, L.P.
6107599 77Valparaiso, LLC, 77-131Petoskey, LLC, Downtown Indy, LLC, 82Plainfiled, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 Calac Investment
---------------------------------------------------------------------------------------------------------------------------------
6107466 Chico Senior Living Delaware, LLC
6107656 1565 North, LLC
6107150 4th Plain Center LLC
6107655 1849 North, LLC
6107659 Olive Grove Properties, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107729 SCCC, LTD.
6107429 Concord Mall Properties, LLC
6107700 Chimney Ridge Apartments, LLC, BG Chimney Ridge, LLC, DE Chimney Ridge, LLC, MWH Chimney Ridge, LLC, Phoenix Ridge
Chimney Ridge, LLC, WC Holdings Chimney Ridge, LLC, Chimney Ridge Sponsor, LLC, WJC Chimney Ridge, LLC
6106801 Xxxxxxxxx Xxxxxxxxxx, LLC, Alexandria TIC 1, LLC, Alexandria TIC 2, LLC, ALexandria TIC 3, LLC, University Plains TIC
15, LLC
6106801a
---------------------------------------------------------------------------------------------------------------------------------
6106801b
6107245 The Mix Shops Properties, LLC
6107169 Pearl City Shops, LLC
6107657 1425 North, LLC
6107518 Town & Country Dunhill, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107476 Shree Hari Hospitality Corp., Sahaj Development LLC
6107476a
6107476b
6107414 Bluegrass Center, LLC
6107078 MSE Industrial Investments, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107079 MSE Industrial Investments, LLC
6107556 FABRICW, L.L.C., FABRICJEK, L.L.C., FABRICERW, L.L.C., FABRICC, L.L.C., FABRICKK, L.L.C., FABRICH, L.L.C., FABRICZ,
L.L.C., FABRICSEK, L.L.C., FABRICB, L.L.C.
6107585 46.24 Associates L.P.
6107699 Woodland Hills Apartments, LLC, XX Xxxxxxxx Hills, LLC, DRW Woodland Hills, LLC, Harbor Way Woodland Hills, LLC,
LAM Woodland Hills, LLC, MWH Woodland Hills, LLC, RAW Woodland Hills, LLC, RBW Woodland Hills, LLC, THP Woodland Hills,
LLC, UEW Woodland Hills, LLC, WC HOldings Woodland Hills, LLC, WJC Woodland Hills, LLC, Woodland Hills Sponsor, LLC
6107479 Xxxxxxx Business Center, LLC
---------------------------------------------------------------------------------------------------------------------------------
6107648 Pine Hill Equities, LLC
6107608 BIG Office Properties, LLC
6107608a
6107608b
6107608c
---------------------------------------------------------------------------------------------------------------------------------
6107675 Xxxxxx Square, LLC
6107444 1811 Bering I, Ltd.
6107236 Dollar Self Storage #7, L.L.C.
6107611 Ambassador Dunhill, LLC
6107184 3200 Como Assoc., LLC
---------------------------------------------------------------------------------------------------------------------------------
6107408 Xxxx Xxxxx Property Investors, LLC
6107459 Xxxxxxx Place LLC
6107523 JAMRSS Forest Oaks, L.P.
NON-TRUST-SERVICED NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE POOLED MORTGAGE
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE ACCRUAL
---------------------------------------------------------------------------------------------------------------------
6107768 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.705000% 1
6107601a
6107601b
---------------------------------------------------------------------------------------------------------------------
6107601c
6107601d
6107601e
6107597 Prudential Asset Resources, Inc. 0.705000% 1
6107597a
---------------------------------------------------------------------------------------------------------------------
6107597b
6107597c
6107597d
6107689 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.705000% 1
---------------------------------------------------------------------------------------------------------------------
6107599a
6107599b
6107599c
6107599d
6107431 Prudential Asset Resources, Inc. 0.705000% 1
---------------------------------------------------------------------------------------------------------------------
6107466 Prudential Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
---------------------------------------------------------------------------------------------------------------------
6107729 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
6106801a
---------------------------------------------------------------------------------------------------------------------
6106801b
6107245 Prudential Asset Resources, Inc. 0.705000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107476 Prudential Asset Resources, Inc. 0.205000% 1
6107476a
6107476b
6107414 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107079 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107648 Prudential Asset Resources, Inc. 0.205000% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
6107608a
6107608b
6107608c
---------------------------------------------------------------------------------------------------------------------
6107675 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
---------------------------------------------------------------------------------------------------------------------
6107408 Prudential Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.205000% 1
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER
The Mortgage Loan Seller hereby represents and warrants that, as of
the Closing Date:
(a) The Mortgage Loan Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) The Mortgage Loan Seller's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the Mortgage Loan
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 material instrument to
which it is a party or by which it is bound, which default or breach, in the
good faith and reasonable judgment of the Mortgage Loan Seller, is likely to
affect materially and adversely the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(c) The Mortgage Loan Seller has the full power and authority to
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.
(d) This Agreement, assuming due authorization, execution and delivery
by the other party or parties hereto, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, 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.
(e) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of, performance under and compliance with 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 Mortgage Loan Seller's good
faith and reasonable judgment, is likely to affect materially and adversely the
ability of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(f) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation by
the Mortgage Loan Seller of the transactions contemplated herein, except for (A)
those consents, approvals, authorizations or orders that previously have been
obtained and (B) 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.
(g) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Mortgage Loan Seller's
knowledge, threatened against the Mortgage Loan Seller that, if determined
adversely to the Mortgage Loan Seller, would prohibit
Ex. B-1-1
the Mortgage Loan Seller from entering into this Agreement or that, in the
Mortgage Loan Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
(i) The Mortgage Loan Seller is not transferring the Mortgage Loans to
the Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(j) The Mortgage Loan Seller will be solvent at all relevant times
prior to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Mortgage Loan Seller's assets,
either taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Mortgage Loan Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Mortgage Loan Seller,
and the Mortgage Loan Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business.
(l) The Mortgage Loan Seller does not intend to, and does not believe
that it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(m) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Mortgage Loan Seller are pending or contemplated.
(n) The principal place of business and chief executive office of the
Mortgage Loan Seller is located in the State of New Jersey.
(o) The consideration received by the Mortgage Loan Seller upon the
sale of the Mortgage Loans constitutes at least fair consideration and
reasonably equivalent value for such Mortgage Loans.
Ex. B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Purchaser's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Purchaser'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 material instrument to which it is a party or by
which it is bound, which default or breach, in the good faith and reasonable
judgment of the Purchaser, is likely to affect materially and adversely the
ability of the Purchaser to perform its obligations under this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the other party or parties hereto, 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, receivership, 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.
(d) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Purchaser's knowledge,
threatened against the Purchaser that, if determined adversely to the Purchaser,
would prohibit the Purchaser from entering into this Agreement or that, in the
Purchaser's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Purchaser to perform its obligations under
this Agreement.
(e) The Purchaser has the full power and authority to 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.
(f) The Purchaser is not in violation of, and its execution and
delivery of, performance under and compliance with 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 the ability of
the Purchaser to perform its obligations under this Agreement.
Ex. B-2-1
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Ex. C-1
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE MORTGAGE LOAN
SELLER'S KNOWLEDGE" AND OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN,
EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE
OF THE MORTGAGE LOAN SELLER, ITS OFFICERS AND EMPLOYEES RESPONSIBLE FOR THE
UNDERWRITING, ORIGINATION, SERVICING OR SALE OF THE MORTGAGE LOANS REGARDING THE
MATTERS EXPRESSLY SET FORTH BELOW IN EACH CASE WITHOUT HAVING CONDUCTED ANY
INDEPENDENT INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO
(EXCEPT (I) HAVING SENT TO THE SERVICERS SERVICING THE MORTGAGE LOANS ON BEHALF
OF THE MORTGAGE LOAN SELLER, IF ANY, SPECIFIC INQUIRIES REGARDING THE MATTERS
REFERRED TO AND (II) AS EXPRESSLY SET FORTH HEREIN). ALL INFORMATION CONTAINED
IN DOCUMENTS WHICH ARE PART OF OR REQUIRED TO BE PART OF A MORTGAGE FILE, AS
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (TO THE EXTENT SUCH DOCUMENTS
EXIST) SHALL BE DEEMED WITHIN THE MORTGAGE LOAN SELLER'S KNOWLEDGE.
The Mortgage Loan Seller hereby represents and warrants that, as of
the date herein below specified or, if no such date is specified, as of the
Closing Date, except with respect to the Exceptions described on Schedule C to
this Agreement and subject to Section 17 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this
Agreement.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan. The Mortgage
Loan Seller has full right, power and authority to transfer and assign each
Mortgage Loan to or at the direction of the Purchaser free and clear of any and
all pledges, liens, charges, security interests, participation interests and/or
other interests and encumbrances. Upon consummation of transactions contemplated
by this Agreement, the Mortgage Loan Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Mortgage Loan Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, the 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 period. If the Mortgage Loan Seller was the originator of the
Mortgage Loan, the Mortgage Loan has not been 60 days or more past due in
respect of any Monthly Payment (without
1
giving effect to any applicable grace period) at any time since the date of
origination. If the Mortgage Loan Seller was not the originator of the Mortgage
Loan, the Mortgage Loan has not, to the Mortgage Loan Seller's knowledge, been
60 days or more past due in respect of any Monthly Payment (without giving
effect to any applicable grace period) at any time since the date of
origination.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy, a preliminary title policy with escrow instructions, or a
"marked-up" commitment, in each case binding upon the title insurer), none of
which (individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer), none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(d) other matters to which like properties are commonly subject, none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (e) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property which the Mortgage Loan
Seller did not require to be subordinated to the lien of such Mortgage and which
do not (individually or in the aggregate) materially interfere with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (f) condominium declarations of record and identified in such lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer) and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (g) being herein referred to as the
"Permitted Encumbrances"). Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments and UCC Financing
Statements, establishes and creates a valid and, subject to the exceptions
2
set forth in Paragraph 13 below, enforceable security interest in favor of the
holder thereof in all items of personal property owned by the related Borrower
which are material to the conduct in the ordinary course of the Borrower's
business on the related Mortgaged Property. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller), unless the
related Mortgage has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, in which case no such
assignment has been executed. Such assignment of Mortgage (if any) constitutes a
legal, valid, binding and, subject to the exceptions set forth in Paragraph 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, to be included in
the related Mortgage File as otherwise contemplated by this Agreement, an
Assignment of Leases, either as a separate instrument or as part of the
Mortgage, related to and delivered in connection with each Mortgage Loan that
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in Paragraph 13 below, enforceable assignment of or first priority lien on
and security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Mortgage Loan Seller) unless the related Mortgage has been recorded in the name
of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, in
which case no such assignment has been executed. Such assignment of Assignment
of Leases (if any) constitutes a legal, valid, binding and, subject to the
exceptions set forth in Paragraph 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. If an Assignment
of Leases exists with respect to any Mortgage Loan (whether as part of the
related Mortgage or separately), then the related Mortgage or related Assignment
of Leases, subject to applicable law, provides for, upon an event of default
under the Mortgage Loan, the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or for rents to be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part, in each such
event in a manner which would materially interfere with the benefits of the
security intended to be provided by such Mortgage.
3
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by a third party
engineering consultant and included in the Servicing File and which has been the
delivered to the initial Controlling Class Representative, the related Mortgaged
Property is, to the Mortgage Loan Seller's knowledge, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan (except in any such case where: (1) an escrow of funds or
insurance coverage or a letter of credit exists in an amount reasonably
estimated to be sufficient to effect the necessary repairs and maintenance; or
(2) such repairs and maintenance have been completed; or (3) such repairs and
maintenance are required to be completed and the amount reasonably estimated to
be sufficient to effect the necessary repairs and maintenance does not exceed 5%
of the original principal balance of the related Mortgage Loan). None of the
engineering reports referred to in the first sentence of this Paragraph 7 was
prepared more than 18 months prior to the Closing Date. As of the date hereof,
the Mortgage Loan Seller has no knowledge of any proceeding pending or written
notice of any proceeding threatened for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Mortgage
Loan Seller's knowledge (based solely on surveys (if any) and/or the lender's
title policy (or, if such policy is not yet issued, a pro forma title policy, a
preliminary title policy with escrow instructions or a "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan, (a) all of the improvements on
the related Mortgaged Property considered material in determining the appraised
value of the Mortgaged Property at origination lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current principal
use of such Mortgaged Property, and (b) no improvements on adjoining properties
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association lender's title insurance policy
or a comparable form of lender's title insurance policy approved for use in the
applicable jurisdiction (the "Title Policy") (or, if such policy is yet to be
issued, by a pro forma policy, a preliminary title policy with escrow
instructions or a "marked up" commitment binding on the title insurer) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to any Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Mortgage Loan Seller's knowledge, no material claims have been made thereunder
and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor
to the Mortgage Loan Seller's knowledge, any other holder of the Mortgage Loan
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee
4
(including endorsement and delivery of the related Mortgage Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), the following: (a) access to a public road; and (b)
that if a survey was reviewed or prepared in connection with the origination of
the related Mortgage Loan, the area shown on such survey is the same as the
property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Mortgage Loan Seller, the
Purchaser or any transferee thereof except in connection with a trustee's sale
after default by the related Borrower or such customary fee, as may be payable,
in connection with any full or partial release of the related Mortgaged Property
or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgage
Loans identified on Schedule C to this Agreement as Property Condition or
Engineering Report Loans, where the environmental assessment with respect to
lead based paint, asbestos containing materials, and radon gas was included in
the Property Condition or Engineering Report, with respect to each Mortgaged
Property (a) an environmental site assessment or an environmental site
assessment update (each, an "Environmental Assessment") was performed by an
independent third party environmental consultant with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) a report of each such Environmental Assessment or, in the
case of a Property Condition or Engineering Report Loan, the applicable Property
Condition or Engineering Report, if any (each, an "Environmental Report"), is
dated no earlier than twelve (12) months prior to the Closing Date and has
5
been delivered to the Purchaser, and (c) either (i) no such Environmental
Report, if any, provides that as of the date of the report there is a material
violation of applicable environmental laws with respect to any known
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property and the same has not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) a party or parties not related to the related Borrower
was identified as a responsible party for such condition or circumstance, (B)
the related Borrower was required to provide additional security in an amount
reasonably estimated by the Mortgage Loan Seller to be adequate to cure the
violations and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Mortgage Loan Seller in its reasonable business judgment, 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, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
by the Mortgage Loan Seller to be sufficient for purposes of effecting such
remediation, (G) the related Borrower or other 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
recommended by the environmental site assessment, (H) the related Mortgaged
Property is insured under a policy of insurance, subject to certain per
occurrence and aggregate limits and a deductible, against certain losses arising
from such circumstances and conditions or (I) a responsible party provided a
guaranty or indemnity to the related Borrower and/or the mortgagee to cover the
costs of any required investigation, testing, monitoring or remediation and, as
of the date of origination of the related Mortgage Loan, such responsible party
had, in the Mortgage Loan Seller's sole discretion, an appropriate net worth, or
the financial ability to pay or perform all of its obligations under such
guaranty or indemnity, in light of such material violation of applicable
environmental laws with respect to such known circumstances or conditions
relating to the related Mortgaged Property. To the Mortgage Loan Seller's
knowledge, there are no significant or material circumstances or conditions with
respect to such Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Borrower questionnaire delivered to Mortgage
Loan Seller in connection with the issuance of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. For the Mortgaged Properties
identified on Schedule C (Representation 12) to this Agreement, the Mortgage
Loan Seller required the related Borrower to deliver, or the Mortgage Loan
Seller itself obtained, a secured creditor impaired property insurance policy
naming the Mortgage Loan Seller and its successors and/or assigns as a loss
payee (a "Secured Creditor Policy") or a pollution legal liability policy naming
the Mortgage Loan Seller and its
6
successors and/or assigns as an additional insured (a "PLL Policy"; a Secured
Creditor Policy or a PLL Policy, an "Environmental Policy") (provided that a
Mortgaged Property will not be identified on Schedule C (Representation 12) to
this Agreement unless the applicable Environmental Policy was obtained to
specifically address an environmental concern or in lieu of obtaining a Phase I
environmental assessment or conducting additional environmental testing); such
Environmental Policy has been issued by an insurer with a claims paying ability
rating or a financial strength rating, as applicable, of no less than "AA" by
each of S&P and Fitch; such Environmental Policy is in full force and effect and
all premiums required to be paid in connection with the issuance of such
Environmental Policy have been so paid; and either such Environmental Policy, by
its terms, inures to the benefit of the holder of the related Mortgage Loan or,
subject to the Seller's compliance with this Agreement, such Environmental
Policy will be assigned to the Trustee within a reasonable period of time
following the Closing Date. All Environmental Reports that were in the
possession of the Mortgage Loan Seller and that relate to a Mortgaged Property
identified on Schedule C (Representation 12) to this Agreement have been
delivered to or disclosed to the environmental insurance carrier issuing the
related Environmental Policy prior to the issuance of such Environmental Policy.
Each Environmental Policy covering a Mortgaged Property identified on Schedule C
(Representation 12) to this Agreement that constitutes a Secured Creditor Policy
is in an amount either (1) at least equal to 125% of the outstanding principal
balance of the related Mortgage Loan or (2) equal to the lesser of cleanup costs
and the outstanding principal balance of the related Mortgage Loan and, in
either case, such policy has a term ending no sooner than the date which is five
years after the Stated Maturity Date (or, in the case of an ARD Loan, the
Anticipated Repayment Date) of the Mortgage Loan to which it relates and either
(x) does not provide for a deductible or (y) provides for a deductible and the
amount of that deductible is held in escrow. Each Environmental Policy covering
a Mortgaged Property identified on Schedule C (Representation 12) to this
Agreement that constitutes a PLL Policy (1) has a term that is co-terminous with
the Stated Maturity Date (or, in the case of an ARD Loan, the Anticipated
Repayment Date) of the related Mortgage Loan, (2) provides for a deductible in
an amount reasonably acceptable to the Mortgage Loan Seller and (3) is in an
amount reasonably acceptable to the Mortgage Loan Seller. The Mortgage for each
Mortgage Loan encumbering the related Mortgaged Property or other related loan
documents require the related Borrower to comply with all applicable federal,
state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent
transfer, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
except that certain provisions in such loan documents may be further limited or
rendered unenforceable by applicable law, but (subject to the limitations set
forth in
7
the foregoing clauses (i) and (ii)) such limitations or unenforceability will
not render such loan documents invalid as a whole or substantially interfere
with the mortgagee's realization of the principal benefits and/or security
provided thereby. Except as set forth in the immediately preceding sentence,
there was no valid offset, defense, counter claim or right of rescission
available to the related Borrower with respect to any of the related Mortgage
Notes, Mortgages or other loan documents, including, without limitation, any
such valid offset, defense, counter claim or right based on intentional fraud by
Mortgage Loan Seller in connection with the origination of the Mortgage Loan,
that would deny the mortgagee the principal benefits intended to be provided by
the Mortgage Note, Mortgage or other loan documents.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least twelve (12) months
(18 months for Mortgage Loans above $35 million) (or a specified dollar amount
which, in the reasonable judgment of the Mortgage Loan Seller, will cover no
less than twelve (12) months (18 months for Mortgage Loans above $35 million) of
rental income). Set forth on Schedule C (Representation 14) to this Agreement is
a list of those Mortgaged Properties as to which a tenant having a net worth of
at least $50,000,000 or an investment grade rating provided self-insurance, as
contemplated by the second preceding sentence, as of the date of origination of
the subject Mortgage Loan. All such hazard insurance policies described above
contain a standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee as an additional insured in
the case of liability insurance policies or as a loss payee in the case of
property insurance policies, and are not terminable (nor may the amount of
coverage provided thereunder be reduced) without prior written notice to the
mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Except under circumstances that
would be reasonably acceptable to a prudent commercial mortgage lender, 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 18 below). Each Mortgage requires
that the Borrower or a tenant of the Borrower maintain insurance
8
as described above or permits the mortgagee to require insurance or
self-insurance as described above, and permits the mortgagee to purchase such
insurance at the Borrower's expense if Borrower fails to do so or provides that
the mortgagee has the general right to cure defaults of the Borrower. Each
Mortgaged Property is also covered by comprehensive general liability insurance
in an amount at least equal to $1 million. If any material part of the
improvements, exclusive of a parking lot, located on a Mortgaged Property is in
an area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, the related Borrower is required to
maintain flood insurance in respect thereof to the extent such flood insurance
is available.
15. Taxes and Assessments. To the Mortgage Loan Seller's knowledge,
there are no delinquent property taxes or assessments or other outstanding
charges affecting any Mortgaged Property securing a Mortgage Loan that are a
lien of priority equal to or higher than the lien of the related Mortgage, or if
there are such delinquent charges or taxes, or if the appropriate amount of such
taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes
or charges are covered by an escrow of funds or other security sufficient to pay
such tax or charge. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Mortgage Loan Seller's knowledge, no
Borrower under a Mortgage Loan is a debtor in any state or federal bankruptcy,
insolvency or similar proceeding. To the Mortgage Loan Seller's knowledge, as of
the origination of the Mortgage Loan, none of (x) the nonrecourse carveout
guarantors or nonrecourse carveout indemnitors under the Mortgage Loan, (y) any
tenant with respect to more than 75% of the net rentable area at the related
Mortgaged Property that is an Affiliate of the Borrower or (z) the sole tenant
at the Mortgaged Property (in the case of this clause (z), if substantially all
of the Mortgaged Property is leased to a single tenant and the tenant was the
owner of the Mortgaged Property immediately prior to the origination of the
Mortgage Loan) was a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Mortgage Loan Seller's knowledge,
based upon any of a letter from governmental authorities, a legal opinion, an
architect's letter, a zoning consultant's report, an endorsement to the related
title policy, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located (including, without limitation, when commercially
reasonable, a representation of the related Borrower at the time of origination
of the subject Mortgage Loan), the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect (i) the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan; or (ii) the principal use of the
Mortgaged Property as of the date of the origination of such Mortgage Loan). As
of the date of origination, with respect to each
9
legal non-conforming use or structure, the originator determined (based on
either (x) any of a review of the applicable zoning law, a letter from a
governmental authority, a legal opinion, an architect's letter, a zoning
consultant's report, an endorsement to the related title policy or a combination
of the foregoing or (y) due diligence considered reasonable by prudent
commercial mortgage lenders in the lending area where the subject Mortgaged
Property is located) that if a casualty occurred at that time, the Mortgaged
Property could have been restored or repaired to such an extent that the use or
structure of the restored or repaired property would be substantially the same
use or structure, or law and ordinance insurance has been obtained, or a
holdback has been established and the Borrower is required to take steps
necessary to cause the Mortgaged Property to become a conforming use or
structure.
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted
for recording; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to,
and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it either has been obtained or cannot be unreasonably withheld;
provided that such Ground Lease has not been terminated and all amounts
owed thereunder have been paid). If required by such Ground Lease, the
lessor has received notice of the lien of the related Mortgage in
accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of
the Mortgage Loan notice and the holder of such Mortgage Loan is permitted
a reasonable time to cure any default or breach by the lessee thereunder,
including such time as is necessary to gain possession of the Mortgaged
Property, by foreclosure or otherwise, if possession is necessary to
effect such cure, before the lessor thereunder may terminate such Ground
Lease;
10
(e) In connection with the origination of such Mortgage Loan, the
related ground lessor provided an estoppel to the originator confirming
that the related Borrower was not then in default under such Ground Lease;
such Ground Lease provides that no notice of termination given under such
Ground Lease is effective against the mortgagee under such Mortgage Loan
unless a copy has been delivered to the mortgagee; the Mortgage Loan
Seller has not received any written notice of default under or termination
of such Ground Lease; to the Mortgage Loan Seller's knowledge, there is no
material default under such Ground Lease and no condition that, but for
the passage of time or giving of notice, would result in a material
default under the terms of such Ground Lease; and, to the Mortgage Loan
Seller's knowledge, such Ground Lease is in full force and effect as of
the Closing Date;
(f) Such Ground Lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the mortgagee if it takes
possession of such leasehold interest) that extends not less than 20 years
beyond the stated maturity of the related Mortgage Loan, or 10 years if
such Mortgage Loan fully or substantially amortizes by the stated
maturity;
(g) Such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease as a result
of a rejection of such Ground Lease in a bankruptcy proceeding involving
the related Borrower, unless the mortgagee under such Mortgage Loan fails
to cure a curable default of the lessee under such Ground Lease following
notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (ii) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender on a similar mortgaged property in the lending
area where the Mortgaged Property is located at the time of the
origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors
11
or assigns, provided that such mortgagee has provided the ground lessor
with notice of its lien in accordance with the terms of such Ground Lease.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Mortgage Loan Seller nor, to the Mortgage Loan Seller's knowledge, any prior
holder of such Mortgage Loan has advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property (other than amounts paid by the tenant as
specifically provided under a related lease), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
Monthly Payment.
22. Legal Proceedings. To the Mortgage Loan Seller's knowledge,
there are no pending actions, suits, governmental investigations or proceedings
by or before any court or governmental authority against or affecting the
Borrower under any Mortgage Loan or the related Mortgaged Property that, if
determined adversely to such Borrower or Mortgaged Property, would materially
and adversely affect the value of the Mortgaged Property, the principal benefit
of the security intended to be provided by the Mortgage Loan Documents, the
current ability of the Mortgaged Property to generate net cash flow sufficient
to service such Mortgage Loan, or the current principal use of the Mortgaged
Property.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
other underwriting criteria specified therein. To the Mortgage Loan Seller's
knowledge, except for cases involving Cross-Collateralized Mortgage Loans, none
of the Mortgaged Properties securing the
12
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. Each of the related Mortgage
Loan Documents requires the Borrower to pay all reasonable costs and expenses
related to obtaining consent to an encumbrance.
24. No Mechanics' Liens. As of the date of origination and, to the
Mortgage Loan Seller's knowledge, as of the Closing Date, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
is free and clear of any and all mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance; and, to the Mortgage Loan Seller's
knowledge, no rights are outstanding that under law could give rise to any such
lien that would be prior or equal to the lien of the related Mortgage and that
is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Mortgage Loan Seller's knowledge,
as of the date of origination of each Mortgage Loan, and based on any of: (i) a
letter from governmental authorities, (ii) a legal opinion, (iii) an endorsement
to the related Title Policy, (iv) a representation of the related borrower at
the time of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then operated or such
material licenses, permits and franchises have otherwise been issued, and, as of
the Cut-Off Date, the Mortgage Loan Seller has no written notice that the
related Borrower was not in possession of such licenses, permits and franchises
or that such licenses, permits and franchises have not otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
U.S. "government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Cross-Collateralized Mortgage Loans
and the other individual Mortgage Loans secured by multiple parcels may require
the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (i) the satisfaction of certain legal and underwriting requirements, (ii)
the payment of a release price and, if so provided in the related Mortgage Loan
Documents, prepayment consideration in connection therewith or (iii) the
13
substitution of real property collateral; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Mortgage Loan Seller did not give any material
value in underwriting the Mortgage Loan. With respect to any full or partial
release or substitution of collateral, as contemplated by the provisos to the
immediately preceding sentence, either: (a) such release or substitution of
collateral (i) would not constitute a "significant modification" of the subject
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2)
and (ii) would not cause the subject Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3)(A) of the Code; or (b) the
mortgagee or servicer can, in accordance with the related Mortgage Loan
Documents, condition such release or substitution of collateral on the related
Borrower's delivery of an opinion of tax counsel to the effect specified in the
immediately preceding clause (a).
29. Defeasance. If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan either (A) (1) permits
defeasance no earlier than two years after the Closing Date, (2) permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i), in an
amount sufficient to make all scheduled payments under the Mortgage Note and (3)
has been transferred by the Mortgage Loan Seller with the intent that the
defeasance provision not be utilized (x) for any reason other than to facilitate
the disposition of the Mortgaged Property or any other customary commercial
transaction or (y) as a part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages or (B) requires that a legal
opinion or opinions be delivered with respect to the defeasance that states
subject to customary assumptions and qualifications that the holder of the such
Mortgage Loan has a first priority perfected security interest in the defeasance
collateral and that the defeasance will not cause the Trust to fail to qualify
as a REMIC as defined in the REMIC Provisions (the "Legal Opinion"). The related
Mortgage Loan Documents enable the lender to charge the Borrower for the
expenses associated with permitting a defeasance and provide for the following
items (or otherwise contain provisions pursuant to which the holder can require
such items): (a) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan for the
remainder of its term, (b) the Legal Opinion, and (c) a letter or other written
evidence from the Rating Agencies to the effect that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings assigned to
the Certificates.
30. Fixed Rate Loan. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
31. Inspection. Each related Mortgaged Property was inspected by or
on behalf of the related originator or an affiliate during the 12 month period
prior to the related origination date.
32. No Material Default. To the Mortgage Loan Seller's knowledge,
there exists no material default, breach, violation or event of acceleration
under the
14
Mortgage Note or Mortgage for any Mortgage Loan and no event has occurred which,
with the passing of time or giving of notice and the expiration of any grace or
cure period, would constitute such a material default or breach; provided,
however, that this representation and warranty does not cover any default,
breach, violation or event of acceleration that specifically pertains to or
arises out of the subject matter otherwise covered by any other representation
and warranty made by the Mortgage Loan Seller in this Exhibit C. Neither the
Mortgage Loan Seller nor any servicer on behalf of the Mortgage Loan Seller has
accelerated the Mortgage Loan or commenced judicial or non-judicial foreclosure
proceedings with respect to the Mortgage Loan.
33. Due-on-Sale. Except for transfers to specific parties that are
identified and pre-approved in the Mortgage Loan Documents and except with
respect to certain transfers by reason of family and estate planning and/or a
substitution or release of collateral within the parameters of Paragraph 28
above, each Mortgage contains a "due on sale" clause which expressly or
effectively provides for the acceleration of the payment of the unpaid principal
balance and accrued interest of the related Mortgage Loan if, without the prior
written consent of the holder of such Mortgage and/or the satisfaction of
specified criteria set forth in the related Mortgage Loan Documents, the
property subject to the Mortgage or any material portion thereof, or any
controlling interest in the Borrower is directly or indirectly transferred, sold
or pledged; provided, however, that certain Mortgage Loans provide a mechanism
for the assumption of the loan by a third party upon the Borrower's satisfaction
of certain conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Borrower or constituent entities of the Borrower to
a third party or parties related to the Borrower upon the Borrower's
satisfaction of certain conditions precedent.
34. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $10,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Mortgaged Properties,
and whose organizational documents further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Mortgaged Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan Documents, that it has its own books and records and
accounts separate and apart from any other person, that it holds itself out as a
legal entity (separate and apart from any other person), that it will not
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
except on an arm's-length basis.
15
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Security Interests in Hospitality Properties. If any Mortgaged
Property securing a Mortgage Loan is operated as a hospitality property then (a)
the security agreements, financing statements or other instruments, if any,
related to the Mortgage Loan secured by such Mortgaged Property establish and
create a valid and enforceable (subject to the exceptions set forth in Paragraph
13 above) first priority security interest in all items of personal property
owned by the related Borrower which are material to the conduct in the ordinary
course of the Borrower's business on the related Mortgaged Property, subject
only to purchase money security interests, personal property leases and security
interests to secure revolving lines of credit and similar financing; and (b) one
or more Uniform Commercial Code financing statements covering such personal
property have been filed or recorded (or have been sent for filing or recording)
wherever necessary to perfect under applicable law such security interests (to
the extent a security interest in such personal property can be perfected by the
filing of a Uniform Commercial Code financing statement under applicable law).
The related assignment of such security interest (but for insertion of the name
of the assignee and any related information which is not yet available to the
Mortgage Loan Seller) executed and delivered in favor of the Trustee constitutes
a legal, valid and binding assignment thereof from the relevant assignor to the
Trustee.
37. Prepayment Premiums. Prepayment Premiums payable with respect to
each Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
38. [RESERVED]
39. [RESERVED]
40. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower, or a natural
person, for damages sustained in connection with the Borrower's fraud, material
misrepresentation or misappropriation or misapplication of rents, insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents contain
provisions pursuant to which the related Borrower, a principal of such Borrower
or an entity controlled by a principal of such Borrower, or a natural person,
has agreed to indemnify the mortgagee for damages resulting from violations of
any applicable environmental covenants.
41. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
42. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
16
43. Escrows. All escrow deposits (including capital improvements,
environmental remediation reserves and other reserve deposits, if any) relating
to any Mortgage Loan that were required to be delivered to the lender under the
terms of the related Mortgage Loan Documents, have been received and, to the
extent of any remaining balances of such escrow deposits, are in the possession
or under the control of Mortgage Loan Seller or its agents (which shall include
the applicable Master Servicer). All such escrow deposits which are required for
the administration and servicing of such Mortgage Loan are conveyed hereunder to
the Purchaser. Any and all material requirements under each Mortgage Loan as to
completion of any material improvements and as to disbursement of any funds
escrowed for such purpose, which requirements were to have been complied with on
or before the Closing Date, have been complied with in all material respects or,
if and to the extent not so complied with, the escrowed funds (or an allocable
portion thereof) have not been released except in accordance with the terms of
the related loan documents.
44. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage Loan Documents require the related Borrower, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than quarterly and
annually and financial statements of the Borrower not less frequently than
annually (except if the Mortgage Loan has an outstanding principal balance of
less than or equal to $4,000,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases the Mortgage Loan
Documents require the Borrower, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Borrower
annually), and such other information as may be required therein.
45. Appraisals. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of the Mortgage Loan, which
appraisal is signed by an appraiser, who, to the Mortgage Loan Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; in connection
with the origination of the Mortgage Loan, each appraiser has represented in
such appraisal or in a supplemental letter that the appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation.
46. No Capital Contributions. The Mortgage Loan Seller has no
obligation to make any capital contributions to the related Borrower under the
Mortgage Loan.
47. Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for Monthly Payments no longer than ten (10) days from the
applicable Due Date.
48. Access Routes. Based solely on surveys, title insurance reports,
the Title Policy, the engineering report, the appraisal and/or other relevant
documents
17
included in the Mortgage File, at the time of origination of the Mortgage Loan,
the Mortgaged Property had access to a public road.
49. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, in
which case the Mortgage Loan requires the Borrower to escrow an amount
sufficient to pay taxes for the existing tax parcel of which the Mortgaged
Property is a part.
50. Loan Servicing. The servicing practices used with respect to
each Mortgage Loan have been in all material respects legal, proper, and
prudent.
51. Terrorism Insurance. With respect to each Mortgage Loan that has
a Stated Principal Balance as of the Cut-off Date that is greater than or equal
to $20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule C to this Agreement.
18
SCHEDULE C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Sch. C-1
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
EXCEPTIONS TO REPRESENTATION 2 (OWNERSHIP OF MORTGAGE LOANS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 7 (Southlake Mall) The Mortgage Loan is subject to the terms and conditions of
an intercreditor agreement between the initial holder of the
A-1 note and the Mortgage Loan Seller, the initial holder of
the A-2 note.
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Loan Nos. 18, 19 and 21 (HRC Portfolio 3, HRC Portfolio 1 and The related Mortgage Loan is subject to the terms and
HRC Portfolio 2) conditions of an intercreditor agreement between the
Mortgage Loan Seller, the initial holder of the related A
note, and the initial holder of the related B Note.
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EXCEPTIONS TO REPRESENTATION 4 (LIEN; VALID ASSIGNMENT)
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MORTGAGE LOAN EXCEPTION
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Loan No. 7 (Southlake Mall) The Mortgage Loan is subject to the terms and conditions of
an intercreditor agreement between the initial holder of the
A-1 note and the Mortgage Loan Seller, the initial holder of
the A-2 note.
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Loan Nos. 18, 19 and 21 (HRC Portfolio 3, HRC Portfolio 1 and The related Mortgage Loan is subject to the terms and
HRC Portfolio 2) conditions of an intercreditor agreement between the
Mortgage Loan Seller, the initial holder of the related A
note, and the initial holder of the related B Note.
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Walgreens, a tenant at the Mortgaged Property, has a right
Loan No. 46 (Xxxx Shopping Center) of first refusal to purchase the Mortgaged Property if the
borrower elects to voluntarily sell the Mortgaged Property
during the tenant's lease term that has not been
subordinated to the Mortgage Loan. However, the borrower
has agreed in the loan documents that any such transfer
shall require (i) lender consent, which may be withheld in
lender's sole discretion, and (ii) delivery of "no
downgrade" confirmation of the ratings assigned to the
Certificates from each applicable Rating Agency. In
addition, if this provision of the loan documents is
violated, the Mortgage Loan will be full recourse to the
borrower.
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Loan No. 50 (South Coast Plaza) The Mortgaged Property is subject to a deed restriction
which prohibits usage of the property for the sale of food,
grocery items, pharmaceutical products unless sale is
related to the operation of a restaurant. The former owner
of the Mortgaged Property nevertheless entered into a lease
with Dollar Tree Stores Inc. which expressly permitted the
sale of certain of the prohibited items to the public; in
the lease, the former owner alleged that the deed
restriction was unenforceable as an invalid restraint of
trade on its face, and as applied, was an unreasonable
restraint on alienation and an impermissible interference
with others' economic advantages. The lease contains a
provision pursuant to which the borrower (as assignee of the
former owner) has agreed to reimburse the tenant for any
losses that it incurs in the event that any claim is made
that the tenant's usage of the premises violates the terms
of the deed restriction. However, if the deed restriction
is ever enforced against the borrower, the guarantors have
provided the lender with a guaranty with respect to any
losses resulting from such enforcement (including any losses
arising by reason of lost rent).
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Loan No. 51 (Concord Plaza and Mall) Pizza Hut, a tenant at the Mortgaged Property, has a right
of first offer to purchase the Mortgaged Property (or the
portion thereof constituting the tenant's premises) upon
the borrower's election to sell the Mortgaged Property (or
the portion thereof constituting the tenant's premises)
during the tenant's lease term; the tenant's right of first
offer has not been subordinated to the Mortgage Loan .
However, the borrower has agreed in the loan documents that
any such transfer shall require (i) lender consent, which
may be withheld in lender's sole discretion, and (ii) if
the principal amount of the Mortgage Loan is greater than $5
million, delivery of "no downgrade" confirmation of the
ratings assigned to the Certificates from each applicable
Rating Agency. In addition, if this provision of the loan
documents is violated, the Mortgage Loan will be full
recourse to the non-recourse carveout guarantor.
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Loan No. 56 (Alexandria Apartments) One of the Mortgaged Properties, Pecan Grove Apartments, has
a land use restriction agreement in effect, expiring in
2028, that requires that a
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2
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specified number of units be rented to tenants at specified
income levels. Although not specifically noted in the title
policy, the application of the land use restriction agreement
does not (individually or in the aggregate) materially
interfere with the security intended to be provided by such
Mortgage, the current marketability or principal use of the
related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to
service such Mortgage Loan.
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EXCEPTIONS TO REPRESENTATION 7 (CONDITION OF PROPERTY; CONDEMNATION)
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MORTGAGE LOAN EXCEPTION
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Loan No. 56 (Alexandria Apartments) The engineering reports with respect to the Mortgaged
Properties are dated May 10, 2006, which is more than 18
months prior to the Closing Date.
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EXCEPTIONS TO REPRESENTATION 12 (ENVIRONMENTAL CONDITIONS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 56 (Alexandria Apartments) The environmental reports with respect to the Mortgaged
Properties are dated May 10, 2006, which is more than 12
months prior to the Closing Date.
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EXCEPTIONS TO REPRESENTATION 14 (INSURANCE)
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MORTGAGE LOAN EXCEPTION
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Loan No. 7 (Southlake Mall) The loan documents provide that coverage under the all risk
insurance policy must equal 100% of the replacement cost of
improvements.
The business interruption insurance policy provides coverage
for an amount equal to 12 months, rather than 18 months.
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Loan Xx. 0 (00 Xxxxxxxxx Xxxxxx) The Mortgaged Property is covered by a comprehensive general
liability policy in an amount at least equal to $1 million
per occurrence which may utilize a $500,000 self-insured
retention in the primary liability policy.
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3
EXCEPTIONS TO REPRESENTATION 18 (LEASEHOLD ESTATE ONLY)
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Loan Xx. 0 (00 Xxxxxxxxx Xxxxxx) With respect to clause (g), the lessor is required to enter
into a new lease with the mortgagee upon the termination of
the related Ground Lease, rather than as a result of a
rejection in a bankruptcy proceeding.
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EXCEPTIONS TO REPRESENTATION 23 (OTHER MORTGAGE LIENS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 7 (Southlake Mall) The Mortgage Loan is subject to the terms and conditions of
an intercreditor agreement between the initial holder of the
A-1 note and the Mortgage Loan Seller, the initial holder of
the A-2 note.
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Loan Nos. 18, 19 and 21 (HRC Portfolio 3, HRC Portfolio 1 and The related Mortgage Loan is subject to the terms and
HRC Portfolio 2) conditions of an intercreditor agreement between the
Mortgage Loan Seller, the initial holder of the related A
note, and the initial holder of the related B Note.
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EXCEPTIONS TO REPRESENTATION 27 (CROSS-COLLATERALIZATION)
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
------------------------------------------------------------------------------------------------------------------------------
Loan No. 7 (Southlake Mall) The Mortgage Loan is subject to the terms and conditions of
an intercreditor agreement between the initial holder of the
A-1 note and the Mortgage Loan Seller, the initial holder of
the A-2 note.
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Loan Nos. 18, 19 and 21 (HRC Portfolio 3, HRC Portfolio 1 and The related Mortgage Loan is subject to the terms and
HRC Portfolio 2) conditions of an intercreditor agreement between the
Mortgage Loan Seller, the initial holder of the related A
note, and the initial holder of the related B Note.
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EXCEPTIONS TO REPRESENTATION 28 (RELEASES OF MORTGAGED PROPERTIES)
------------------------------------------------------------------------------------------------------------------------------
Loan No. 7 (Southlake Mall) The loan documents permit the release of one or more
specified parcels at the Mortgaged Property without payment
of release price, provided that except with respect to
parcels that are acquired after the origination date, each
such parcel is generally required to be vacant, non-income
producing and unimproved or improved only by landscaping,
utility facilities that are readily relocatable or surface
parking areas.
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4
EXCEPTIONS TO REPRESENTATION 29(B) (DEFEASANCE)
------------------------------------------------------------------------------------------------------------------------------
Loan No. 7 (Southlake Mall) The borrower is required to pay all reasonable out-of-pocket
costs and expenses.
------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 30 (FIXED RATE LOAN)
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
------------------------------------------------------------------------------------------------------------------------------
Loan No. 97 (BGK Portfolio) The interest rate on the Mortgage Loan is 6.62% until
December 4, 2012, and thereafter 6.85%.
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EXCEPTIONS TO REPRESENTATION 33 (DUE-ON-SALE)
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 7, 9, 40, 47, 68, 72 and 96 (Southlake Mall, 11 The loan documents permit the equity owners of the borrower
Metrotech Center, Glenwood Apartments, Raintree Apartments, to incur mezzanine debt subject to satisfaction of various
Pearl City Shops, Cambridge Court Apartments and Pine Hill conditions specified in such documents, generally including
Portfolio) the satisfaction of a DSCR and/or LTV tests and delivery of
a "no downgrade" confirmation from the applicable rating
agencies.
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Loan No. 7 (Southlake Mall) The loan documents permit, without lender consent: (i)
transfers of direct or indirect ownership interests in the
borrower to "Qualified Transferees" meeting certain
financial criteria and general creditworthiness standards
set forth in the Loan Agreement; and (ii) transfers of
direct or indirect ownership interests in certain specified
affiliates of the borrower.
In addition, the holders of direct and indirect ownership
interests in the borrower are permitted to pledge their
interests as security for additional debt, provided that the
conditions specified in the loan agreement are satisfied.
Pledges of equity to or from affiliates of the borrower are
also permitted.
In addition, (i) any shareholder in General Growth
Properties, Inc. ("General Growth") or in any other person
the shares of whom are traded on the New York Stock Exchange
or any other nationally or internationally recognized
exchange, is permitted to sell, assign, convey, transfer,
pledge, hypothecate, create a security interest in or
otherwise dispose of such shares or cause its
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5
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shares to be redeemed, or (ii) any limited partner of GGP
Limited Partnership L.L.C. ("GGPLP") is permitted to sell,
assign, convey, transfer, pledge, hypothecate, create a
security interest in or otherwise dispose of its limited
partnership interest in GGPLP or to cause or permit its
limited partnership interest in GGPLP to be redeemed or (iii)
the holder of any equity interest (each an "Equity Holder")
in New York State Common Retirement Fund ("NYSCRF") or
Teachers Retirement System of the State of Illinois ("TRS")
or Ivanhoe Equities Fund V LP ("Ivanhoe") or GGP/Homart,
Inc., GGP/Homart II L.L.C. or GGPLP L.L.C. or GGP Ivanhoe,
Inc.(other than General Growth or GGPLP or any of its or
their affiliates) is permitted to transfer such Equity
Holder's interest in NYSCRF or TRS or Ivanhoe or GGP/Homart,
Inc., GGP/Homart II L.L.C. or GGPLP L.L.C. or GGP Ivanhoe,
Inc. or to cause or permit such Equity Holder's interest in
NYSCRF or TRS or Ivanhoe or GGP/Homart, Inc., GGP/Homart II
L.L.C. or GGPLP L.L.C. or GGP Ivanhoe, Inc. to be redeemed.
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 55, 56, 83 and 89 (Chimney Ridge Apartments, With respect to Mortgage Loans made to tenant-in-common
Alexandria Apartments and Woodland Hills Apartments) borrowers, the loan documents also permit, without lender
consent, transfers among and to additional tenant-in-common
borrowers.
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Loan Nos. 55, 56 and 83 (Chimney Ridge Apartments, Alexandria At least 50% of the tenant-in-common interests in the
Apartments and Woodland Apartments) related Mortgaged Property are permitted to be sold to a
single entity with the consent of the lender; provided, that
if the proposed transferee already owns a tenant-in-common
interest in such Mortgaged Property (an "Existing TIC") or
is owned by the same owners as an existing TIC, then the
lender may not withhold its consent with respect to the
proposed transferee so long as (i) the lender determines
that there has been no material adverse change in the
Existing TIC's, or its owner's, financial condition and
credit history and (ii) the Existing TIC is not in default
beyond applicable grace periods under the tenant-in-common
agreement.
------------------------------------------------------------------------------------------------------------------------------
Loan No. 55 (Chimney Ridge Apartments) An equity owner of the borrower pledged 100% of its
membership interest in the borrower as security for a
$1,500,000 loan. An intercreditor agreement in favor of the
lender was executed.
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6
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Loan No. 56 (Alexandria Apartments) An equity owner of the borrower pledged 100% of its
membership interest in the borrower as security for a
$2,000,000 loan. An intercreditor agreement in favor of the
lender was executed.
------------------------------------------------------------------------------------------------------------------------------
Loan No. 85 (Middlesex Business Center II) The partners or members of the borrower are permitted to
transfer their interest to a third party so long as (i)
Xxxxxxx Xxxxx, Xxxxxx Xxxxx and/or another person reasonably
acceptable to the lender maintains a controlling interest in
such borrower or any general partner of such borrower and
(ii) the lender has received "no downgrade" confirmation of
the ratings assigned to the Certificates from each
applicable Rating Agency.
------------------------------------------------------------------------------------------------------------------------------
Loan No 89 (Woodland Hills Apartments) An equity owner of the borrower pledged 100% of its
membership interest in the borrower as security for
$1,500,000 loan. An intercreditor agreement in favor of the
lender was executed.
------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 35 (WHOLE LOAN)
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
------------------------------------------------------------------------------------------------------------------------------
Loan No. 7 (Southlake Mall) The Mortgage Loan is subject to the terms and conditions of
an intercreditor agreement between the initial holder of the
A-1 note and the Mortgage Loan Seller, the initial holder of
the A-2 note.
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 18, 19 and 21 (HRC Portfolio 3, HRC Portfolio 1 and The related Mortgage Loan is subject to the terms and
HRC Portfolio 2) conditions of an intercreditor agreement between the
Mortgage Loan Seller, the initial holder of the related A
note, and the initial holder of the related B Note.
------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 40 (RECOURSE)
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 7 and 120 (Southlake Mall and Ambassador Plaza SC) The carveout with respect to misrepresentation is for
"intentional misrepresentation" not "material
misrepresentation."
------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 51 (TERRORISM INSURANCE)
------------------------------------------------------------------------------------------------------------------------------
MORTGAGE LOAN EXCEPTION
------------------------------------------------------------------------------------------------------------------------------
Loan No. 7 (Southlake Mall) The borrower is required to maintain terrorism insurance
provided such insurance is (i) commercially available and
(ii) can be obtained at a commercially reasonable cost.
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7
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Loan Xx. 0 (00 Xxxxxxxxx Xxxxxx) The borrower is required to maintain terrorism insurance but
in no event is required to spend for any 12-month period in
excess of 150% of the annual premium for the all risk policy
required under the Loan Agreement, as such amount may be
increased annually (as of September 1 of each calendar year
beginning September 1, 2008) during the term of the Mortgage
Loan by a percentage equal to the increase in the Consumer
Price Index from the previous year, as determined by the
lender.
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 18, 19 and 21 (HRC Portfolio 3, HRC Portfolio 1 and If the Terrorism Risk Insurance Act of 2002, Public Law
HRC Portfolio 2) 107-297, as amended ("TRIA"), is no longer in effect, the
borrower is required to purchase only as much terrorism
insurance as may be obtained for an annual premium not less
than two times the aggregate premiums for all insurance in
effect at origination (and not just the portion of premiums
attributable to the terrorism insurance).
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 50, 78, 97, 120 and 000 (Xxxxx Xxxxx Xxxxx, If TRIA is no longer in effect, the borrower is required to
Bluegrass Center, BGK Portfolio, Ambassador Place Shopping purchase as much terrorism insurance as may be obtained for
Center and Xxxxxxx Place) an amount not less than two times the aggregate premium for
all insurance in effect at origination (and not just the
portion of premiums attributable to the terrorism insurance).
------------------------------------------------------------------------------------------------------------------------------
Loan No. 75 (Xxxxxxx Inn - Best Western) If TRIA is no longer in effect, the borrower is required to
purchase as much terrorism insurance as may be obtained for
an amount equal to two times the aggregate premium for all
insurance in effect at origination (and not just the portion
of premiums attributable to the terrorism insurance).
------------------------------------------------------------------------------------------------------------------------------
Loan Xx. 00 (Xxxxxxxxx Xxxxxxxx Xxxxxx) If TRIA is no longer in effect, the borrower is required to
purchase terrorism insurance in an amount, coverage and form
acceptable to the lender, in its reasonable determination,
but in no event shall the amount of coverage that is
required to be obtained exceed the coverage that is
available for a premium equal to two times the aggregate
premium for all insurance in effect as of the date of
recordation of the mortgage (and not just the portion of
premiums attributable to the terrorism insurance).
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8
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Loan No. 91 (Xxxxxxx Corporate Plaza) If TRIA is no longer in effect, the borrower is required to
purchase terrorism insurance costing no less than two times
the aggregate premium for all insurance in effect as of the
date of recordation of the mortgage (and not just the
portion of premiums attributable to the terrorism insurance).
------------------------------------------------------------------------------------------------------------------------------
Loan Nos. 115 and 133 (1811 Bering and Forest Oaks) If TRIA is no longer in effect, the borrower is required to
purchase as much terrorism insurance as may be obtained for
an amount not less than three times the aggregate premium
for all insurance in effect at origination (and not just the
portion of premiums attributable to the terrorism insurance).
------------------------------------------------------------------------------------------------------------------------------
9
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed certificate attached at Tab 42.
Ex. X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
CERTIFICATE OF MORTGAGE LOAN SELLER
In connection with the execution and delivery by Prudential Mortgage
Capital Funding, LLC ("PMCF") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase and Sale
Agreement dated as of December 13, 2007 (the "Mortgage Loan Purchase Agreement")
among PMCF as seller and Bear Xxxxxxx Commercial Mortgage Securities Inc. as
purchaser (the "Purchaser"), the undersigned hereby certifies that (i) except as
previously disclosed to the Purchaser in writing, the representations and
warranties of PMCF in or made pursuant to Section 4(a) of the Mortgage Loan
Purchase 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, (ii) PMCF
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part required under the Mortgage Loan Purchase
Agreement to be performed or satisfied at or prior to the date hereof, and (iii)
since the date of the Mortgage Loan Purchase Agreement, there will not have
been, immediately prior to the transfer of the Mortgage Loans pursuant to the
Mortgage Loan Purchase Agreement, any material adverse change in the financial
condition of PMCF. Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement.
Certified this ___ day of December, 2007.
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By:
--------------------------------------
Name:
Title:
Ex. D-2-1
EXHIBIT D-3A
FORM OF OPINION PURSUANT TO SECTION 7(VI)
Executed opinion attached at Tab 92.
Ex. D-3A-1
EXHIBIT D-3B
FORM OF OPINION PURSUANT TO SECTION 7(VII)
Executed opinion attached at Tab 91.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(VIII)
Executed opinion attached at Tab 89 and Tab 90.
Ex. D-3C-1
