EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"), is
dated and effective as of March 8, 2007, between Principal Commercial Funding
II, LLC ("PCFII"), 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
PCFII 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 Xxxxx'x
Investors Service, Inc. and Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of March 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") and as loan specific special 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"), ARCap 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 September 13, 2006 (the "Base Prospectus"),
and the supplement to the Base Prospectus dated March 8, 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.
PCFII 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 PCFII, 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 March 29, 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 $548,985,047, 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 March
29, 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
2
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.
The parties acknowledge that a servicing rights purchase agreement
dated as of the date hereof will be executed between the applicable Master
Servicer for the Mortgage Loans sold hereunder and the Mortgage Loan Seller,
which agreement shall entitle the Mortgage Loan Seller (as the present owner of
the Mortgage Loans) to a separate payment from such Master Servicer in exchange
for the benefit of such Master Servicer becoming the applicable Master Servicer
of the Mortgage Loans sold hereunder (and any Replacement Pooled Mortgage Loan
therefor) and also will contemplate the execution and delivery of the PCFII
Primary Servicing Agreement providing for the primary servicing of the Mortgage
Loans sold hereunder (and any Replacement Pooled Mortgage Loans therefor) by
Principal Global Investors, LLC (or a successor thereto).
(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
3
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 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 (or a Primary Servicer on its behalf) 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
4
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 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 either the Mortgage Loan
Seller's (i) rights as the beneficiary thereof and drawing party thereunder or
(ii) right to receive the proceeds of any draw under such Letter of Credit (it
being acknowledged that the Mortgage Loan Seller shall not be required to change
the named beneficiary of such Letter of Credit). In addition, the Mortgage Loan
Seller hereby agrees that (i) the proceeds of such Letter of Credit belong to
the Trustee on behalf of the Certificateholders, (ii) it shall notify, on or
before the Closing Date, the bank issuing such Letter of Credit that such Letter
of Credit and the proceeds thereof belong to the Trustee, and shall use
reasonable efforts to obtain within 30 days (but in any event to obtain within
90 days) following the Closing Date, an acknowledgement thereof by the bank or a
reissued letter of credit and (iii) it will indemnify the Trust for any
liabilities, charges, costs, fees or other expenses accruing from the failure of
the Mortgage Loan Seller to assign to the Trust all rights in and to such Letter
of Credit as set forth herein, including the right and power to draw on such
Letter of Credit. 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
5
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) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or in the case of a Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03 of the Pooling and
Servicing Agreement, after the related date of substitution) and (ii) the date
on which all recording information necessary to complete the subject document is
received by the Mortgage Loan Seller, the Mortgage Loan Seller shall complete
(to the extent necessary), and shall submit for recording or filing, as the case
may be, including via electronic means, if appropriate, in or with the
appropriate office for real property records or UCC Financing Statements, as
applicable, each assignment of Mortgage and assignment of Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment of Leases that
has been recorded in the name of MERS or its designee) in favor of the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement and each assignment of UCC Financing Statement (except
with respect to any UCC Financing Statement that has been recorded in the name
of MERS or its designee) in favor of the Trustee referred to in clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing Agreement.
Each such assignment shall reflect that it should be returned by the public
recording office to the Trustee following recording, and each such assignment of
UCC Financing Statement shall reflect that the file copy thereof or an
appropriate receipt therefor, as applicable, should be returned to the Trustee
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases the Trustee shall obtain therefrom a copy of the recorded original. 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 all reasonable out-of-pocket costs and expenses associated
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 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
6
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 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.
7
(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 "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
8
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 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
9
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
(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
10
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 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.
11
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 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
12
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.
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:
13
(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 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;
14
(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) [Reserved];
(vii) A written opinion of Dechert 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 Dechert 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;
(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
15
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. Xxxxxxxxx, Xx., 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 000
Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxxx (with copies
to the attention of Xxxxxx X. Xxxxxxxxx, Esq.), 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.
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.
16
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 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
17
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.
[SIGNATURE PAGE FOLLOWS]
18
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.
PRINCIPAL COMMERCIAL FUNDING II, LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name:
Title:
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name:
Title:
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxxxxxxx Xxxxxxx
------------------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: Vice President
PCFII MLPA
EXHIBIT A
SCHEDULE OF PCFII POOLED MORTGAGE LOANS
Ex. A-1
ID CMSA LOAN NO. CMSA PROPERTY NO. SELLER LOAN NUMBER PROPERTY NAME LOAN GROUP
--------------------------------------------------------------------------------------------------------------
8 8 8-001 755645 000 Xxxxxxxx Xxxx Xxxx - Unit 3 1
9 9 9-001 755643 000 Xxxxxxxx Xxxx Xxxx - Unit 1 1
10 10 10-001 755644 000 Xxxxxxxx Xxxx Xxxx - Unit 2 1
14 14 14-001 755642 000 Xxxxxx Xxxx Xxxxxxxxx 1
19 19 19-001 755555 Sterling Jewelers Headquarters 1
20 20 20-001 755569 The Pointe at Neptune 2
21 21 21-001 755605 Chaddwell Apartments 2
31 31 31-001 755594 Country Club Plaza 1
45 45 45-001 755456 Commerce Crossings Nine 1
53 53 53-001 755604 Severgn Apartments 2
55 55 55-001 755553 0 Xxxx 00xx Xxxxxx 1
56 56 56-001 755637 0000 Xxxx XxXxxxxx Xxxx 1
58 58 58-001 755633 The Shoppes of Long Grove 1
59 59 59-001 755510 0000 Xxxx Xxx Xxxx 1
61 61 61-001 755610 Xxxxxxxx Xxxxxxx Xxxxxxxx 0
00 00 000000 Xxxxxxx Portfolio 1
66-a 66-001 755592a Mansfield Town Center East
66-b 66-002 755592b Kroger Foods - Xxxxx
66-c 66-003 755592c Kroger Foods - Xxxxx
69 69 69-001 755434 00000 Xxxxxxx Xxxxxxx 1
70 70 70-001 755601 Anacostia Professional Building 1
75 75 75-001 755573 McDonogh Surgical Center 1
77 77 77-001 755591 Brandywine Centre II 1
81 81 81-001 755536 Best Buy Danvers 1
83 83 83-001 755513 Simi Valley Business Center 1
87 87 87-001 755567 Xxxxxxxxx Headquarters Office Building 1
91 91 91-001 755471 Sierra Village 1
94 94 94-001 755559 0000 Xxxx 00xx Xxxxxx 1
103 103 103-001 755608 Totowa Shoppes 1
109 109 109-001 755564 The Xxxxxxx Building 1
119 119 119-001 755581 000 Xxxxxx Xxxxxxx Xxxx 1
120 120 120-001 755483 000 Xxxxxxxx Xxxxxxx Xxxx 1
123 123 123-001 755079 1693 - 0000 Xxxx Xxxxxxxx Xxxx 1
128 128 128-001 755600 Fairfield Inn and Suites Shalimar 1
136 136 136-001 755587 Trojandale Apartments 2
150 150 150-001 755586 The Spot on 00xx Xxxxxx 2
157 157 157-001 755438 Rolling Hills Apartments 2
160 160 160-001 755609 0000 XX 00 Xxxxx 1
163 163 163-001 755539 000 Xxxxxxxxxx Xxxxxx 1
177 177 177-001 755588 The Tower 2
182 182 182-001 755532 Xxxxx Shoppes of Winder 1
185 185 185-001 755572 0 Xxxxxxxxx Xxxxx 1
188 188 188-001 755331 000 Xxxxxx Xxxxxx 1
192 192 192-001 755524 0000 X. Xxxxxxxxx Xxxxxxxxx 1
200 200 200-001 755582 Northglenn Plaza 1
202 202 202-001 755595 00000 Xxxxxxx Xxxxxx 1
203 203 203-001 755574 0000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx 1
206 206 206-001 755538 0 Xxxx Xxxxx Xxxx 1
CUT-OFF DATE
ID ADDRESS CITY STATE ZIP CODE ORIGINAL BALANCE BALANCE
-----------------------------------------------------------------------------------------------------------------------------------
8 000 Xxxxxxxx Xxxx Xxxx - Xxxx 0 Xxxxxxxxxx XX 00000 60,700,000 60,700,000
9 000 Xxxxxxxx Xxxx Xxxx - Xxxx 0 Xxxxxxxxxx XX 00000 59,150,000 59,150,000
10 000 Xxxxxxxx Xxxx Xxxx - Xxxx 0 Xxxxxxxxxx XX 00000 53,150,000 53,150,000
14 000 Xxxxxx Xxxx Xxxxxxxxx Xxxx Xxxxxxx XX 00000 40,000,000 40,000,000
19 000 & 000 Xxxxx Xxxx Xxxxx XX 00000 30,000,000 30,000,000
20 0000 Xxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 29,000,000 29,000,000
21 000 Xxxxxxxxxx Xxxx Xxxxx XX 00000 27,500,000 27,460,994
00 0000-0000, 4201 & 0000-0000 Xxxx 000xx Xxxxxx Xxxxxxx Xxxx Xxxxx XX 00000 19,000,000 19,000,000
45 0000 Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 16,000,000 16,000,000
53 000 Xxxxx Xxxxxxx Xxxxx Xxxxx XX 00000 12,900,000 12,881,703
55 0 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 12,000,000 12,000,000
56 0000 Xxxx XxXxxxxx Xxxx Xxxxxxxxxx XX 00000 12,000,000 11,987,022
00 000-000 Xxxxxx Xxxxxx Coffin Road, 000-000 Xxx XxXxxxx
Xxxx Xxxx Xxxxx XX 00000 11,100,000 11,100,000
59 0000 Xxxx Xxx Xxxx Xxxxxxxxxx XX 00000 11,000,000 11,000,000
61 000 Xxxxxxxxxxxx Xxxxx Xxxxxxxxxxxxx XX 00000 10,700,000 10,700,000
66 Various Various Various Various 10,000,000 10,000,000
66-a 000 Xxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000 6,570,000 6,570,000
66-b 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000 2,110,000 2,110,000
00-x 000 Xxxxx Xxxxxxx 00 Xxxxxxxxxx XX 00000 1,320,000 1,320,000
69 00000 Xxxxxxx Xxxxxxx Xxxxxxx XX 00000 9,150,000 9,150,000
70 0000 Xxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 9,000,000 8,987,690
75 00 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxx XX 00000 8,750,000 8,729,473
77 000 Xxxxxxx Xxxxxxxxx Xxxx Xxxx Xxxxx XX 00000 8,000,000 8,000,000
81 000 Xxxxxxxxxxxx Xxx Xxxxxxx XX 00000 7,600,000 7,600,000
83 74-81 & 00-00 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000 7,500,000 7,484,800
87 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 7,350,000 7,350,000
91 3312, 3370, and 0000 Xx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 7,120,000 7,120,000
94 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxx XX 00000 6,800,000 6,790,718
103 000-000 Xxxxx 00 Xxxx Xxxxxx XX 00000 6,200,000 6,200,000
109 000 Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000 5,750,000 5,729,940
119 000 Xxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000 5,000,000 5,000,000
120 000 Xxxxxxxx Xxxxxxx Xxxx Xxxxxxx Xxxxxxxx XX 00000 5,000,000 5,000,000
123 1693 -1699 Xxxx Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000 4,800,000 4,800,000
128 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxx XX 00000 4,500,000 4,493,753
136 0000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000 4,000,000 3,994,494
150 000 Xxxx 00xx Xxxxxx Xxx Xxxxxxx XX 00000 3,400,000 3,395,320
157 0000 Xxxx Xxxx Xxxxxxxx XX 00000 3,152,000 3,144,937
160 0000 XX 00xx Xxxxx Xxxxx XX 00000 3,000,000 3,000,000
163 000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 3,000,000 2,978,452
177 0000 Xxxxx Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 2,600,000 2,596,421
182 105 - 000 Xxxx Xxx Xxxxxx Xxxxxx XX 00000 2,500,000 2,489,038
185 0 Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000 2,300,000 2,294,232
188 000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 2,200,000 2,200,000
192 0000 X. Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 2,100,000 2,095,520
200 00000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 1,450,000 1,446,427
202 00000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 1,070,000 1,068,588
203 0000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx Xxxxxx XX 00000 1,000,000 995,548
206 0 Xxxx Xxxxx Xxxx Xxxxxxx XX 00000 725,000 719,974
P&I MONTHLY DEBT IO MONTHLY INTEREST ACCRUAL ORIGINAL TERM TO
ID SERVICE DEBT SERVICE MORTGAGE RATE BASIS ARD LOAN (Y/N) MATURITY DATE OR ARD MATURITY OR ARD (MOS.)
-----------------------------------------------------------------------------------------------------------------------------------
8 NAP 287,714 5.61000% Actual/360 No 02/01/17 120
9 NAP 289,613 5.79500% Actual/360 No 02/01/19 144
10 NAP 251,927 5.61000% Actual/360 No 02/01/17 120
14 NAP 189,597 5.61000% Actual/360 No 02/01/17 120
19 NAP 141,184 5.57000% Actual/360 Yes 02/01/17 120
20 NAP 135,253 5.52000% Actual/360 No 02/01/17 120
21 154,078 NAP 5.38000% Actual/360 No 02/01/17 120
31 NAP 93,751 5.84000% Actual/360 No 02/01/17 120
45 110,062 74,352 5.50000% Actual/360 No 02/03/17 120
53 72,277 NAP 5.38000% Actual/360 No 02/01/17 120
55 69,724 57,893 5.71000% Actual/360 No 01/05/17 120
56 65,151 NAP 5.59000% Actual/360 Yes 02/01/17 120
58 63,513 52,238 5.57000% Actual/360 No 02/01/17 120
59 64,263 53,533 5.76000% Actual/360 No 08/01/16 114
61 NAP 54,785 6.06000% Actual/360 No 03/01/12 60
66 83,148 NAP 5.77000% 30/360 No 03/01/22 180
66-a
66-b
66-c
69 55,153 46,772 6.05000% Actual/360 No 02/01/15 96
70 52,350 NAP 5.72000% Actual/360 No 02/01/17 120
75 49,682 NAP 5.50000% Actual/360 Yes 01/01/17 120
77 45,825 37,717 5.58000% Actual/360 No 03/01/17 120
81 NAP 37,436 5.83000% Actual/360 Yes 03/01/17 120
83 44,581 NAP 5.92000% 30/360 No 01/01/17 120
87 43,361 36,329 5.85000% Actual/360 No 02/01/21 168
91 41,505 NAP 5.74000% Actual/360 No 03/01/17 120
94 39,640 NAP 5.74000% Actual/360 No 02/01/17 120
103 NAP 31,011 5.92000% Actual/360 No 03/01/17 120
109 47,995 NAP 5.83000% 30/360 No 02/01/22 180
119 35,649 NAP 5.94000% Actual/360 No 03/01/27 240
120 29,913 25,263 5.98000% Actual/360 No 01/01/17 120
123 29,367 25,104 6.19000% Actual/360 No 01/01/17 120
128 25,777 NAP 5.58000% Actual/360 No 02/01/17 120
136 23,115 NAP 5.66000% Actual/360 No 02/01/17 120
150 19,648 NAP 5.66000% Actual/360 No 02/01/17 120
157 18,454 NAP 5.78000% Actual/360 No 01/01/17 120
160 17,260 14,245 5.62000% Actual/360 No 02/01/17 120
163 24,961 NAP 5.78000% Actual/360 No 01/01/17 120
177 15,025 NAP 5.66000% Actual/360 No 02/01/17 120
182 18,273 NAP 6.25000% Actual/360 No 01/01/27 240
185 16,412 NAP 5.95000% Actual/360 No 02/01/27 240
188 NAP 11,599 6.24000% Actual/360 Yes 01/01/17 120
192 12,699 NAP 6.08000% Actual/360 Yes 01/01/17 120
200 10,531 NAP 6.17000% Actual/360 No 02/01/27 240
202 6,463 NAP 6.07000% Actual/360 No 02/01/17 120
203 7,228 NAP 6.11000% Actual/360 No 01/01/27 240
206 6,208 NAP 6.23000% Actual/360 No 01/01/17 120
ORIGINAL REMAINING
STATED REMAINING TERM AMORTIZATION AMORTIZATION CROSSED WITH CROSSED LOAN
ID TO MATURITY OR ARD (MOS.) TERM (MOS.) TERM (MOS.) OTHER LOANS ID PREPAYMENT PROVISIONS (# OF PAYMENTS)
------------------------------------------------------------------------------------------------------------------------------------
8 119 0 0 GRTR1% or YM(25)/Defeasance or GRTR1% or YM
(93)/Open(2)
9 143 0 0 GRTR1% or YM(25)/Defeasance or GRTR1% or YM
(117)/Open(2)
10 119 0 0 GRTR1% or YM(25)/Defeasance or GRTR1% or YM
(93)/Open(2)
14 119 0 0 GRTR1% or YM(25)/Defeasance or GRTR1% or YM
(93)/Open(2)
19 119 0 0 LO(25)/Defeasance(91)/Open(4)
20 119 0 0 LO(25)/Defeasance(93)/Open(2)
21 119 360 359 LO(25)/Defeasance(93)/Open(2)
31 119 0 0 LO(25)/Defeasance(93)/Open(2)
45 119 240 240 LO(60)/GRTR1% or YM(58)/Open(2)
53 119 360 359 LO(25)/Defeasance(93)/Open(2)
55 118 360 360 LO(26)/Defeasance(92)/Open(2)
56 119 420 419 GRTR1% or YM(118)/Open(2)
58 119 360 360 LO(25)/Defeasance(93)/Open(2)
59 113 360 360 LO(60)/GRTR1% or YM(49)/Open(5)
61 60 0 0 LO(24)/Defeasance(34)/Open(2)
66 180 180 180 LO(24)/GRTR1% or YM(152)/Open(4)
66-a
66-b
66-c
69 95 360 360 LO(25)/Defeasance(69)/Open(2)
70 119 360 359 LO(25)/Defeasance(91)/Open(4)
75 118 360 358 LO(26)/Defeasance(92)/Open(2)
77 120 360 360 LO(24)/Defeasance(94)/Open(2)
81 120 0 0 LO(24)/Defeasance(93)/Open(3)
83 118 360 358 GRTR1% or YM(116)/Open(4)
87 167 360 360 LO(25)/Defeasance(140)/Open(3)
91 120 360 360 LO(24)/Defeasance or GRTR1% or
YM(89)/Open(7)
94 119 360 359 LO(25)/Defeasance(93)/Open(2)
103 120 0 0 LO(24)/Defeasance or GRTR1% or
YM(92)/Open(4)
109 179 180 179 LO(25)/GRTR1% or YM(151)/Open(4)
119 240 240 240 LO(24)/GRTR1% or YM(214)/Open(2)
120 118 360 360 LO(26)/Defeasance(92)/Open(2)
123 118 360 360 LO(26)/GRTR1% or YM(92)/Open(2)
128 119 360 359 LO(25)/Defeasance(93)/Open(2)
136 119 360 359 LO(25)/GRTR1% or YM(91)/Open(4)
150 119 360 359 LO(25)/GRTR1% or YM(91)/Open(4)
157 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2)
160 119 360 360 LO(25)/GRTR1% or YM(93)/Open(2)
163 118 180 178 LO(26)/GRTR1% or YM(92)/Open(2)
177 119 360 359 LO(25)/GRTR1% or YM(91)/Open(4)
182 238 240 238 LO(26)/GRTR1% or YM(212)/Open(2)
185 239 240 239 LO(25)/Defeasance(213)/Open(2)
188 118 0 0 LO(26)/GRTR1% or YM(91)/Open(3)
192 118 360 358 LO(26)/GRTR1% or YM(92)/Open(2)
200 239 240 239 GRTR1% or YM(238)/Open(2)
202 119 360 359 LO(25)/GRTR1% or YM(93)/Open(2)
203 238 240 238 LO(26)/Defeasance(212)/Open(2)
206 118 180 178 LO(26)/GRTR1% or YM(92)/Open(2)
OWNERSHIP LOAN ADMINISTRATIVE GRACE PERIOD LETTER OF CREDIT
ID INTEREST SELLER FEE RATE DUE DATE (PRIOR TO LATE FEES) LETTER OF CREDIT DESCRIPTION
-------------------------------------------------------------------------------------------------------------------------------
8 Fee PCF II 0.03135% 1st 2
9 Fee PCF II 0.03135% 1st 2
10 Fee PCF II 0.03135% 1st 2
14 Fee PCF II 0.03135% 1st 2
19 Fee PCF II 0.03135% 1st 0
20 Fee PCF II 0.03135% 1st 2
21 Fee PCF II 0.03135% 1st 0
31 Fee PCF II 0.03135% 1st 0 Yes ($1,436,501) Upfront TI/LC Reserve
45 Fee PCF II 0.03135% 3rd 0
53 Fee PCF II 0.03135% 1st 0
55 Fee PCF II 0.03135% 5th 0
56 Fee PCF II 0.03135% 1st 0
58 Fee/Leasehold PCF II 0.03135% 1st 0 Yes ($206,300) UpfrontOccupancy
Reserve LOC
59 Fee PCF II 0.03135% 1st 2
61 Fee PCF II 0.03135% 1st 0
66 Fee PCF II 0.03135% 1st 0
66-a Fee PCF II
66-b Fee PCF II
66-c Fee PCF II
69 Fee PCF II 0.03135% 1st 0
70 Fee PCF II 0.03135% 1st 0
75 Fee PCF II 0.03135% 1st 0
77 Fee PCF II 0.03135% 1st 2
81 Fee PCF II 0.03135% 1st 5 (only once per calendar year)
83 Fee PCF II 0.03135% 1st 0 Yes ($125,000) Upfront TI/LC Reserve
87 Fee PCF II 0.03135% 1st 0
91 Fee PCF II 0.03135% 1st 0
94 Fee PCF II 0.03135% 1st 2 Yes ($350,000) Upfront TI/LC Reserve
103 Fee PCF II 0.03135% 1st 0
109 Fee PCF II 0.03135% 1st 0
119 Fee PCF II 0.03135% 1st 0
120 Fee PCF II 0.03135% 1st 0
123 Fee PCF II 0.03135% 1st 0
128 Fee PCF II 0.03135% 1st 0
136 Fee PCF II 0.03135% 1st 0
150 Fee PCF II 0.03135% 1st 0
157 Fee PCF II 0.03135% 1st 3
160 Fee PCF II 0.03135% 1st 0
163 Fee PCF II 0.03135% 1st 0
177 Fee PCF II 0.03135% 1st 0
182 Fee PCF II 0.03135% 1st 0
185 Fee PCF II 0.03135% 1st 0
188 Fee PCF II 0.03135% 1st 0
192 Fee PCF II 0.03135% 1st 0
200 Fee PCF II 0.03135% 1st 0
202 Fee PCF II 0.03135% 1st 0
203 Fee PCF II 0.03135% 1st 0
206 Fee PCF II 0.03135% 1st 0
INITIAL MASTER
ID LOAN SPONSOR INITIAL MASTER SERVICER SERVICING FEE RATE
----------------------------------------------------------------------------------------------------------------------------------
8 Belair Capital Fund LLC Xxxxx Fargo Bank, National Association 0.03050%
9 Belwater Capital Fund LLC Xxxxx Fargo Bank, National Association 0.03050%
10 Belshire Capital Fund LLC Xxxxx Fargo Bank, National Association 0.03050%
14 Clearwood Capital Fund LLC Xxxxx Fargo Bank, National Association 0.03050%
19 Riverview Management Company Xxxxx Fargo Bank, National Association 0.03050%
20 Xxxxxxxx, Xxxxxx X.; Xxxx Xxxxxx; Xxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
21 Xxxxxx, Xxxxxx; Xxxxxx Xxxxxx; Xxxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
31 Xxxxxx, Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
45 Xxxxxx, Xxxxxx X.; Xxxxxxx X. Xxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
53 Xxxxxx, Xxxxxx; Xxxxxx Xxxxxx; Xxxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
55 Goldrach, Xxxx Xxxxx Fargo Bank, National Association 0.03050%
56 Xxxxx, Xxxx; Xxxxx Xxxxx; Xxxxx Xxxxx; Xxxx Xxxxx; Xxxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
00 Xxxxx Xxxxxx Xxxx Xxxxxx Partners, LLC Xxxxx Fargo Bank, National Association 0.03050%
59 Xxxxx, Xx; Xxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
61 Montecito Medical Investment Company Xxxxx Fargo Bank, National Association 0.03050%
66 Town Development Inc, Xxxxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
66-a
66-b
00-x
00 Xxxxxxxx, Xxx; Xxxx Xxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
70 Xxxxxx III, Xxxxxx X.; Xxxxxx Investment Group, Inc. Xxxxx Fargo Bank, National Association 0.03050%
75 MacKenzie Properties, Inc., H.S. Development Association,
Building C Development Association Xxxxx Fargo Bank, National Association 0.03050%
77 Xxxxx, Xxxxxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
81 Xxxx, Xxxxxx; Xxxxxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
83 Xxxxx, Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
87 Lexington Corporate Properties Trust; Lepercq Corporate
Income Fund II Xxxxx Fargo Bank, National Association 0.03050%
91 Xxxxx, Xxxxxx X.; Xxx Xxx Xxxxx Fargo Bank, National Association 0.03050%
94 Xxxxxxxxx, Xxxxx X.; Hillcrest Development LLLP Xxxxx Fargo Bank, National Association 0.03050%
103 Xxxxxxxx, Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
109 Xxxxxxx, Xxxxxx; Xxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
119 Xxxxxxx, Xxxxx; Xxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
120 Xxxxxxx, Xxxxxx X.; Xxxxxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
123 Xxxxxxx, Xxx Xxxxx Fargo Bank, National Association 0.03050%
128 Xxxxxx, Xxxxxxx X. Xxxxx Fargo Bank, National Association 0.03050%
136 Xxxxxx, Xxxxxx; Xxxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
150 Xxxxxx, Xxxxxx; Xxxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
000 Xxxxxx, Xxxx; Xxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
160 Pozo, Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
163 Xxxxxxxx, Xxxxx X. Xxxxx Fargo Bank, National Association 0.03050%
177 Xxxxxx, Xxxxxx; Xxxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
182 Xxxxxxxx, Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
185 Xxxxxxx, Xxxxx; Xxxxxx Xxxxxxx; Xxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
188 Gold, Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
192 Xxxxx Jr., Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
200 Xxxxxx, Xxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
202 Xxxxxxxxx, Xxxx; Xxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
203 Xxxxxx, Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
206 Xxxxxxxx, Xxxxx X. Xxxxx Fargo Bank, National Association 0.03050%
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 Iowa.
(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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
(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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
(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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
PMCF/BSCMI/NLIC/PCF/PCFII
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
INDIVIDUAL MORTGAGE LOANS
PRINCIPAL COMMERCIAL FUNDING II - PWR 15
REP. XX. 00 - XXXXXXXXX
XXXX XX. 000000 - 000 XXXXXX XXXXXX
XXXXXXXXXXX - Pursuant to the loan documents and the lease for the single
tenant, Walgreen's is allowed to self-insure the property if their net worth is
at least $200,000,000, there is no tenant default, and the lease remains in full
force and effect. Walgreen's is currently self-insuring for the required
coverages. Walgreen's does have the right to xxxxx rent during a casualty
restoration starting in the year 2029; however, the loan matures in 2017 so loss
of rents was not required at closing.
LOAN NO. 755524 - 0000 X. XXXXXXXXX XXXXXXXXX
XXXXXXXXXXX - Pursuant to the loan documents and the lease for the single
tenant, Walgreen's is allowed to self-insure for the required coverages of this
loan as long as they maintain a net worth of at least $300,000,000, there is no
tenant default, and the lease remains in full force and effect. Walgreen's is
currently self-insuring the property for the all risk and general liability
coverage.
EXPLANATION - Lease is written to allow tenant to self-insure and provide loss
of rents, so this coverage is included in their self-insurance program.
LOAN NO. 755536 - BEST BUY DANVERS)
EXPLANATION - Fire and extended perils (building coverage) has been waived for
the life of the loan because the security for this loan is land only. Loss of
Rents coverage has been waived for the life of the loan as there is no
termination or abatement rights in the lease.
LOAN NO. 755574 - 9400 NORTH XXX HOUSTON PARKWAY EAST
EXPLANATION - Fire and extended perils (building coverage) has been waived for
the life of the loan because the security for this loan is land only.
EXPLANATION - The lease does allow for termination rights during the last three
years of the lease, therefore the loan documents require the borrower to provide
the loss of rents coverage beginning that year (2023).
LOAN NO. 755592 - XXXXXXX PORTFOLIO
EXPLANATION - Pursuant to the loan documents and the lease for the single
tenant, Kroger is allowed to self-insure if their net worth is at least
$100,000,000, there is no tenant default, and the lease remains in full force
and effect. Kroger is currently self-insuring for two of the insured collaterals
(0000 X Xxxxxxx Xx, Xxxxxxx, XX 00000 and 000 X Xxx 00, Xxxxxxxxxx, XX 00000).
EXPLANATION - Because of termination/abatement rights, the borrower is required
and is providing loss of rents coverage on all three insured collaterals.
Sch. C-1
LOAN NO. 755637 - 7950 EAST XXXXXXXX ROAD
EXPLANATION - Fire and extended perils (building coverage) has been waived for
the life of the loan because the security for this loan is land only. Loss of
Rents coverage has been waived for the life of the loan as there is no
termination or abatement rights in the lease.
EXPLANATION - The tenant Lowe's self-insures for the general liability coverage.
Lease does allow for tenant to self-insure for general liability coverage so
long as the Tenant or its parent corporation's combined net worth exceeds
$200,000,000.
LOAN NO. 755642 - 000 XXXXXX XXXX XXXXXXXXX
XXXX XX. 000000 - 777 SCUDDERS MILL ROAD - XXXX 0
XXXX XX. 000000 - 777 SCUDDERS MILL ROAD - XXXX 0
XXXX XX. 000000 - 777 SCUDDERS MILL ROAD - UNIT 3
EXPLANATION - Pursuant to the loan documents and the lease for the single
tenant, Xxxxxxx-Xxxxx Squibb Company, tenant is allowed to self-insure for all
the required coverages of these loans provided there is no tenant default. The
tenant Xxxxxxx-Xxxxx Squibb Company is currently self-insuring for the terrorism
coverage.
EXPLANATION - Loss of Rents coverage has been waived while the tenant's lease is
in place as there are no termination or abatement rights in the lease.
REP. NO. 17 - LOCAL LAW COMPLIANCE
LOAN NO. - 755438 - ROLLING HILLS APARTMENTS
EXPLANATION - The property is legal, non-conforming with respect to parking and
minimum lot area. The property requires 224 parking spaces and there are 138
parking spaces (deficient 86 spaces). The minimum lot area per dwelling unit is
3,500 sq. ft. which means the minimum lot area per code is 448,000 sq. ft. and
the current lot area is 261,796 sq. ft. The property must be rebuilt to
then-current code if there is casualty damage of 60% or more of the appraised
value. Casualty damage equating to less than 60% of the appraised value may only
be rebuilt to its then current state upon issuance of a variance. The loan
documents contain language requiring borrower to paydown the loan in the event
of casualty to a 1.20x debt service coverage in the event the property cannot be
rebuilt to its current state. Ordinance and law coverage was obtained.
LOAN NO. - 755581 - 844 MIDDLE COUNTRY ROAD
EXPLANATION - The property is legal non-conforming use with respect to parking.
The property requires 87 parking spaces but there are 64 parking spaces
(deficient 23 spaces). The property can be rebuilt to its current state unless
there is casualty damage of more than 50% of the reconstruction cost of the
total structure. The loan documents contain language requiring borrower to
paydown the loan in the event of casualty to a 1.10x debt service coverage in
the event the property cannot be rebuilt to its current state due to the parking
deficiency. The LTV for the property is 66.7%.
LOAN NO. - 755586 - THE SPOT ON 30TH STREET
EXPLANATION - The property is legal non-conforming with respect to setback line
requirements and parking. The current front setback requirement is 15 feet and
the front setback is 10 feet, thus it encroaches by 5 feet. The current side
setback requirement is 6 feet and the rear setback is 5.2, thus it encroaches by
0.8 feet. The current rear setback requirement is 15 feet and the rear setback
is 4.9 feet, thus it encroaches by 10.1 feet. The
Sch. C-2
property requires 21 parking spaces and there are 20 parking spaces (deficient 1
space). The property can be rebuilt to its current state unless there is
casualty damage of more than 75% of the structure. The LTV for the property is
56.6%.
LOAN NO. - 755587 -TROJANDALE APARTMENTS
EXPLANATION - The property is legal non-conforming with respect to setback line
requirements. The current side setback requirement is 6 feet and the rear
setback is 3.7, thus it encroaches by 2.3 feet. The current rear setback
requirement is 15 feet and the rear setback is 8.3 feet, thus it encroaches by
6.7 feet. The property can be rebuilt to its current state unless there is
casualty damage of more than 75% of the structure. The LTV for the property is
62.2%.
LOAN NO. - 755588 - THE TOWER
EXPLANATION - The property is legal non-conforming with respect to setback line
requirements and parking. The current front setback requirement is 15 feet and
the front setback is 4.31 feet, thus it encroaches by 10.69 feet. The current
rear setback requirement is 15 feet and the rear setback is 5 feet, thus it
encroaches by 10 feet. The property requires 13 parking spaces and there are 8
parking spaces (deficient 5 spaces. The property can be rebuilt to its current
state unless there is casualty damage of more than 75% of the structure. The LTV
for the property is 58.2%.
LOAN NO. - 755592 - XXXXXXX PORTFOLIO /MANSFIELD TOWN CENTER EAST
EXPLANATION - The Lebanon property is legal non-conforming with respect to
parking. Zoning requires 312 spaces, and the property has 256 spaces (deficient
56 spaces). The property can be restored to its existing state unless there is
casualty damage of more than 50% of the structure. There is the potential of
some parking available on adjacent property via reciprocal easement agreement
recorded in Deed Record 206, page 581 and Deed Record 209, page 184.
LOAN NO. - 755604 - SEVERGN APARTMENTS
EXPLANATION - The property is legal non-conforming with respect to parking.
Zoning requires 480 spaces and the property has 388 spaces (deficient 92
spaces). The property can be restored to its existing state unless there is
casualty damage of more than 75% of the market value immediately prior to such
damage and the Borrower does not commence reconstruction within 6 months of
loss. The property is comprised of 16 buildings. Ordinance and Law coverage was
obtained.
LOAN NO. - 755605 - CHADDWELL APARTMENTS
EXPLANATION - The property is legal non-conforming with respect to use, building
length and units per acre. The current use is multi-family and the new approved
use is residential (not including multi-family). The property can be restored to
its existing state unless there is casualty damage of more than 75% of the
market value immediately prior to such damage and the Borrower does not commence
reconstruction within one year of loss. The property is comprised of 27
buildings. Ordinance and law coverage was obtained.
The current use can be continued following a casualty provided reconstruction
begins within one year of loss and is completed within one year of the date
commenced. We have added a requirement to the mortgage that any reconstruction
following casualty must meet these two criteria.
The maximum building length is 120 feet. Some of the 27 buildings on the site
exceed this maximum by 67.33 feet and others exceed it by 21.33 feet. The
maximum number of units per acre is 4 and this site has 6.96 per acre (exceeding
the requirement by 2.96 units per acre). For building length and units per acre,
the current
Sch. C-3
structures can be reconstructed as they currently are following a casualty
provided reconstruction begins within one year of loss and is completed within
one year of the date commenced. We have added a requirement to the mortgage that
any reconstruction following casualty must meet these two criteria.
LOAN NO. - 755608 - TOTOWA SHOPPES
EXPLANATION - The property is legal non-conforming with respect to lot coverage,
floor area ratio and parking requirements. Maximum lot coverage is 20% and the
existing property has lot coverage of 35%; thus lot coverage exceeds code by
15%. Maximum floor area ratio is 30% and the existing property has a floor area
ratio of 35%; thus the floor area ratio exceeds code by 5%. The property
requires 143 parking spaces (1 space per 150 sq. ft. of retail space) and there
are 78 parking spaces (deficient 65 spaces). The property can be rebuilt to its
current state unless there is casualty damage of more than 99% of the structure.
The LTV for the property is 65.3% the DSCR.
LOAN NO. - 755633 - THE SHOPPES OF LONG GROVE
EXPLANATION - The property is legal non-conforming with respect to setback line
requirements, heights and parking. The property is comprised of 14 separate
buildings. Bldg 17 encroaches on the front setback along Old XxXxxxx Road by 4.8
feet, Buildings 13 and 23 encroach on the rear setback of 15 feet by 6.46' to
10.77' and Building 36 encroaches on the side setback of 15 feet by 13.76' to
14.2'. The property requires 212 parking spaces and there are 78 parking spaces.
The property is currently short 134 parking spaces. Four buildings exceed the
max 30' height restriction by approx 1.5 to 3 feet. The property can be rebuilt
to its current state unless there is casualty damage of more than 80% of the
value of the structure. Ordinance and Law coverage was obtained.
REP. XX. 00 - XXXXXXXXX XXXXXX XXXX
XXXX XX. - 000000 - THE SHOPPES OF LONG GROVE
EXPLANATION - A portion of the land (Parcels 8A and 8B on the pro forma title
insurance policy) are encumbered by an unsubordinated ground lease (which land
and parking area were not included in lender's valuation of the property). The
ground leased parcels are used solely for parking (there are no building
improvements on these two parcels). The ground lease does not have a casualty
damage clause and the lease does not require the lessee under the ground lease
to insure the parking lot surface against damage or destruction. Seller (aka
lender) does not require parking surfaces to be insured against for casualty
damage in the loan documents. Rep No.18 (h) requires application of insurance
proceeds to either rebuilding or to pay/reduce the loan balance. Because of the
structure noted above, this rep does not apply in this instance and cannot be
made. All other ground lease reps in Rep No. 18 can be made without exception.
REP. NO. 26 - LICENSES AND PERMITS
LOAN NO. - 755434 - 00000 XXXXXXX XXXXXXX
EXPLANATION - The Certificate of Occupancy has not been received for the single
tenant in the property, Rackable Systems, Inc. The loan is fully recourse until
such time as Lender has obtained the Certificate of Occupancy for Rackable
Systems, Inc
Sch. C-4
REP. NO. 28 - RELEASES OF MORTGAGED PREMISES
LOAN NO. - 755513 - SIMI VALLEY BUSINESS CENTER
EXPLANATION - Two partial releases are allowed. If one of the partial releases
is of Building #82-A, it shall be allowed without a partial paydown of the loan
amount because the building was not included as part of the appraised value. The
building is 16,374 sq. ft. and the existing tenant has a purchase option on the
building. A REMIC opinion is required in connection with either partial release.
REP. XX. 00 - XXXXXX XXXXXXX XXXXXX
XXXX XX. - 000000 - 0 XXXX 00XX XXXXXX
EXPLANATION - The Borrower is not required to be an SPE but is required to be a
single asset entity. The LTV for the property is 50.6%.
LOAN NO. - 755605 - CHADDWELL APARTMENTS
EXPLANATION - Borrower is not required to be an SPE. The following leverage
restriction was added to the mortgage in lieu of the SPE requirement: Borrower
shall: (k) restrict the leverage on all properties (other than the Premises)
owned by The Xxxxxx Group and Xxxxxx Enterprises, Ltd, who are current members
of the Borrower, to a maximum of eighty percent (80%) of value collectively.
Sch. C-5
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed Certificate attached at Tab 49.
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 Principal Commercial
Funding, LLC ("PCFII") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase and Sale Agreement dated as
of March 29, 2007 (the "Mortgage Loan Purchase Agreement") among PCFII 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
PCFII 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) PCFII 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
PCFII. Capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Mortgage Loan Purchase Agreement.
Certified this 29th day of March, 2007.
PRINCIPAL COMMERCIAL FUNDING II, LLC
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Ex. D-2-1
EXHIBIT D-3A
FORM OF OPINION PURSUANT TO SECTION 7(vi)
[Reserved]
Ex. D-3A-1
EXHIBIT D-3B
FORM OF OPINION PURSUANT TO SECTION 7(vii)
Executed opinion attached at Tab 106.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(viii)
Executed opinion attached at Tab 103 and Tab 104.
Ex. D-3C-1
