MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"), is
dated and effective as of September 13, 2006, 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 Fitch,
Inc. and Standard & Poor's, 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 September 1, 2006 (the "Pooling and Servicing Agreement"), among
BSCMSI, as depositor (in such capacity, the "Depositor"), Prudential Asset
Resources, Inc., as a master servicer (in such capacity, a "Master Servicer"),
Xxxxx Fargo Bank, National Association, as a master servicer (in such capacity,
a "Master Servicer"), as certificate administrator (in such capacity, the
"Certificate Administrator") and as tax administrator (in such capacity, the
"Tax Administrator"), LNR Partners, 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 September 13, 2006 (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 September 27, 2006 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 $347,958,187, subject to a
variance of plus or minus 5%. The purchase price for the Mortgage Loans shall be
$361,556,408, 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 as set forth
herein, all of the right, title and interest of the Mortgage Loan Seller in, to
and under
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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 Loan Seller's right,
title and interest in and to the Mortgage Loans and all amounts payable to the
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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 been delivered to the Trustee on or before the
date that is 45 days following the Closing Date, the
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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 of the Trustee for
the benefit of the Certificateholders (if and to the extent that it does not by
its
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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.
(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 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
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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.
(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
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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 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.
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(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 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
9
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 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
10
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. 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.
11
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 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
12
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:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
BEAR XXXXXXX COMMERCIAL MORTGAGE
SECURITIES INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Vice President
PCFII MLPA
EXHIBIT A
SCHEDULE OF PCFII POOLED MORTGAGE LOANS
Ex. A-1
SELLER LOAN LOAN
ID NUMBER PROPERTY NAME GROUP ADDRESS
--- ----------- ---------------------------------------- ----- ---------------------------------------
12 755159 Aventura Commons 1 00000 Xxxxxxxx Xxxxxxxxx
14 755220 1390 & 0000 Xxxxx Xxxx 1 1390 & 0000 Xxxxx Xxxx
19 755236 000 Xxxxxx Xxxxxx 1 303 Xxxxxx Xxxxxx
00 000000 Xxxxx Xxxxxxxxx Manor 2 615 Xxxxxx Boulevard
35 755156 Hunterstone Apartments 2 0000 XxxxxxXxxxx Xx
41 755168 Xxxxxxxxx Xxxxxxx Xxxxxx 0 0000 Xxxxx Xxxxx 57
43 755122 000 Xxxx Xxxxxxxxxx Xxxxxx 0 000 Xxxx Xxxxxxxxxx Avenue
44 755123 000 Xxxxxx Xxxxxx 1 780 Regent Street
45 755179 Xxxxxx Xxxxxx Xxxxxxxxxx 0 000 Xxxxx Xxxxxx Xxxxx
56 755176 Gateway Plaza Shopping Center 1 18300 - 00000 Xxxxxxx Xxxxxx Xxxxx
60 755163 Xxxxxxx Palms Apartments 2 0000 Xxxxxxx Xxxxxx
62 755106 Jasper Mall 1 000 Xxxxxxx 00 Xxxx
66 755131 Aloha Market Centre 1 20163-20577 SW Tualatin Valley Xxxxxxx
00 000000 Xxxx Xxxxx 1 15-55 and 00 Xxxx Xxxx Xxxx
78 755051 000 Xxxxxxxxxx Xxxx 1 000 Xxxxxxxxxx Xxxx
122 755141 Town Xxxxxx Xxxx Xxxxxxxxxx 0 00000 XX Xxxxxxx Xxxxx
126 755142 000 Xxxxxxxx Xxxxx 1 500 Maitland Drive
134 755155 Xxx Xxx Xxxxxx 0 0000 Xxxxx Xxx & 0000 Xxxxxxx Xxxxxxxxx
136 755072 Judiciary Place 1 0000 Xxxx Xxxxxxxxxx Xxxx
153 755102 Diho Square Shopping Center 1 9108-9188 Bellaire Boulevard
158 755146 Westlake I & II 1 00000 Xxxxxxxx Xxxxx & 0000
Xxxxxxxxxxxx Xxxxxxxxx
172 755104 Xxx Xxxxxx Xxxxxx 0 0 Xxxxxx Xxxxx
175 755198 000 Xxxxxxxxx Xxxxxx 1 120 Moonachie Ave
179 755182 Franconia Professional Xxxxxx 0 0000 Xxxxxx Xxxxxx
191 755107 Xxxx Xxxxxxx Xxxxxxxx Xxxxxx 0 0000 Xxxx Xxxxxxx
219 755203 4600-4646 Xxxxxxxxxx Xxxxxx 0 0000-0000 Xxxxxxxxxx Xxxxxx
221 755137 1730-1740 Xxxxxxxx Xxxxxx 0 0000-0000 Xxxxxxxx Xxxxxx
230 755150 Cedargate Apartments 2 0000-0000 Xxxxx Xxxx Xxxxxx
233 755050 Xxxxxxx Xxxx 1 000 Xxxxxxx Xxxx Xxxxxx
247 755133 0000 Xxxxxx Xxxxxx 1 7793 Mentor Ave
248 755134 0000 Xxxxx Xxxxxx 1 3990 Royal Avenue
253 755171 0000 Xxxxxxxx Xxxxxxxxx Xxxx 1 0000 Xxxxxxxx Xxxxxxxxx Xxxx
255 755174 4650 Xxxxx Xxxx 0 0000 Xxxxx Xxxx
260 755157 Limestone Market Place and 1 0000/0000 Xxxxxxxxx Xxxx
Advanced Auto Parts
262 755195 Xxxxxx Xxx Xxxxxxxxxx 0 0000 Xxxxxx Xxx
264 755204 000-000 Xxxxxxxxxx Xxxx 1 000-000 Xxxxxxxxxx Xxxx
268 755153 5830-5832 Xxxxxxxx Xxx 0 0000-0000 Xxxxxxxx Xxx
269 755152 4003 Xxxxxxx Xxxxxx 0 0000 Xxxxxxx Xxxxxx
271 755094 0000 X. Xxxxxxx Xxxx 1 0000 X. Xxxxxxx Xxxx
273 755154 15845 Xxxxx Xxxxxx Xxxxxx 0 00000 Xxxxx Xxxxxx Xxxxxx
277 754996 0000 Xxxx Xxxx 1 2960 Post Road
278 755169 Park Xxxxx Xxxxxxxxxx 0 000 Xxxxx Xxxxxx
280 755178 Smyrna Xxxxxx Xxxxxxx, Xxxxxxxx X 0 0000 Xxxxxxx Xxxx
292 755125 0000 Xxxxxxxxxx Xxxxx 1 2895 University Drive
295 755196 Xxxxxx Xxxxxxxxxx #0 0 0000 Xxxxxx Xxx
296 755197 Xxxxxx Xxxxxxxxxx #0 0 0000 Xxxxxx Xxx
298 755128 5889 Xxxxxxxx Xxxxxx 0 0000 Xxxxxxxx Xxxxxx
302 755193 Xxxxxxxxx Xxxxxxxxxx 0 0000 Xxxxxxxxx Xxxxxx
303 755194 Regent Apartments 1 0000 Xxxxxx Xx
ORIGINAL CUT-OFF DATE P&I MONTHLY
ID CITY STATE ZIP CODE BALANCE BALANCE DEBT SERVICE IO MONTHLY DEBT SERVICE
--- ----------------- ----- -------- ---------- ------------ ------------ -----------------------
12 Xxxxxxxx XX 00000 28,250,000 28,250,000 147,269 NAP
14 Xxxxxxxxx XX 00000 27,500,000 27,500,000 181,919 NAP
19 Xxxxxxxx Xxxx XX 00000 25,150,000 25,150,000 156,328 NAP
00 Xxxxx Xxxxxxxxx XX 0000 23,000,000 22,904,703 161,611 NAP
35 Xxxxxx XX 00000 18,000,000 17,990,671 103,724 NAP
41 Xxxxxxxxx XX 0000 16,500,000 16,481,432 103,534 NAP
43 Xxxxxxx XX 00000 9,100,000 9,093,174 56,742 NAP
44 Xxxxxxx XX 00000 6,900,000 6,894,824 43,024 NAP
45 Xxxxxxxxxxx XX 00000 15,000,000 15,000,000 76,675 NAP
56 Xxxxxxxxx XX 00000 14,000,000 13,988,850 85,292 NAP
60 Xxxxx XX 00000 13,200,000 13,188,623 77,872 NAP
62 Xxxxxx XX 00000 12,550,000 12,531,431 65,059 78,748
66 Xxxxxxxxx XX 00000 12,000,000 12,000,000 61,949 72,797
77 Concord NH 3301 10,700,000 10,700,000 56,353 NAP
78 Xxxxx Xxxxxxx XX 00000 10,700,000 10,670,847 63,534 NAP
122 Xxxxxxxxxxx XX 00000 7,035,000 7,035,000 37,150 39,940
000 Xxxxxxx XX 00000 7,000,000 6,994,559 43,055 NAP
134 Xxxxxxxxx XX 00000 6,750,000 6,744,767 41,561 NAP
136 Xxxxxxxx XX 00000 6,600,000 6,600,000 40,038 NAP
000 Xxxxxxx XX 00000 6,000,000 5,990,340 36,437 NAP
158 Xxxxxxxxx XX 00000 5,710,000 5,710,000 29,574 34,713
000 Xxxxxxxxxxxx XX 0000 5,000,000 4,979,457 35,304 NAP
175 Moonachie NJ 7074 4,875,000 4,871,241 30,080 NAP
000 Xxxxxxxxx XX 00000 4,700,000 4,696,337 28,878 NAP
000 Xxxxxx XX 00000 4,300,000 4,293,242 26,364 NAP
219 Xxxxxxxxxxx XX 00000 3,272,500 3,269,963 20,149 NAP
000 Xxx Xxxx XX 00000 3,200,000 3,194,807 19,371 NAP
000 Xxxxxxx Xxxxx XX 00000 3,000,000 3,000,000 18,687 NAP
233 Xxxx XX 00000 3,000,000 2,992,128 18,122 NAP
247 Xxxxxx XX 00000 2,500,000 2,496,249 15,605 NAP
000 Xxxx Xxxxxx XX 00000 2,500,000 2,496,166 15,474 NAP
253 Xxxxxxxxxxx XX 00000 2,390,000 2,384,247 15,855 NAP
255 Xxxxxxxx Xxxxxxx XX 00000 2,300,000 2,298,990 13,943 NAP
260 Xxxxxxxxxxx XX 00000 2,100,000 2,098,459 13,204 NAP
000 Xxxxxxxx XX 00000 2,100,000 2,098,385 12,971 NAP
000 Xxxx Xxxxxxxxx XX 0000 2,090,000 2,090,000 12,909 NAP
268 Xxxxxx Xxxx XX 00000 2,000,000 2,000,000 10,815 12,510
269 Xxxxx XX 00000 2,000,000 1,996,999 12,484 NAP
000 Xxxx Xxxxxx Xxxx XX 00000 2,000,000 1,994,936 12,275 NAP
000 Xxxxxx Xxxx XX 00000 1,850,000 1,848,650 11,657 NAP
000 Xxxxxxxxx XX 6890 1,700,000 1,696,594 12,160 NAP
278 Xxxx XX 00000 1,650,000 1,648,728 10,181 NAP
280 Xxxxxx XX 00000 1,550,000 1,550,000 8,787 10,012
000 Xxxxx Xxxxxxx XX 00000 1,250,000 1,248,114 7,786 NAP
000 Xxxxxxxx XX 00000 1,150,000 1,149,116 7,103 NAP
000 Xxxxxxxx XX 00000 1,150,000 1,149,116 7,103 NAP
298 Xxxxx XX 00000 1,100,000 1,098,390 6,931 NAP
000 Xxxxxxxx XX 00000 1,000,000 999,291 6,367 NAP
000 Xxxxxxxx XX 00000 900,000 899,362 5,730 NAP
INTEREST ACCRUAL SELLER LOAN ARD
ID MORTGAGE RATE BASIS ID NUMBER PROPERTY NAME LOAN (Y/N)
--- ------------- ---------------- --- ----------- ---------------------------------------------- ----------
12 6.17000% Actual/360 12 755159 Aventura Commons Yes
14 6.28000% 30/360 14 755220 1390 & 0000 Xxxxx Xxxx No
19 6.34000% Actual/360 19 755236 000 Xxxxxx Xxxxxx Xx
00 5.76000% Actual/360 24 755084 North Brunswick Manor No
35 6.09000% Actual/360 35 755156 Hunterstone Apartments No
41 5.98000% Actual/360 41 755168 Xxxxxxxxx Xxxxxxx Xxxxxx Xx
00 6.37000% Actual/360 43 755122 000 Xxxx Xxxxxxxxxx Xxxxxx No
44 6.37000% Actual/360 44 755123 000 Xxxxxx Xxxxxx Xx
00 6.05000% Actual/360 45 755179 Xxxxxx Xxxxxx Xxxxxxxxxx Xx
00 6.15000% Actual/360 56 000000 Xxxxxxx Xxxxx Shopping Center No
60 5.85000% Actual/360 60 755163 Xxxxxxx Palms Apartments No
62 6.43000% Actual/360 62 755106 Jasper Mall No
66 6.11000% Actual/360 66 755131 Xxxxx Xxxxxx Xxxxxx Xx
00 6.32000% 30/360 77 755105 City Plaza No
78 5.91000% Actual/360 78 755051 000 Xxxxxxxxxx Xxxx Xx
000 6.25000% Actual/360 122 755141 Xxxx Xxxxxx Xxxx Xxxxxxxxxx Xx
000 6.24000% Actual/360 126 755142 000 Xxxxxxxx Xxxxx Xx
000 6.25000% Actual/360 134 755155 Bel Air Center No
136 6.11000% Actual/360 136 755072 Judiciary Xxxxx Xx
000 6.12000% Actual/360 153 755102 Xxxx Xxxxxx Xxxxxxxx Xxxxxx Xx
000 6.13000% Actual/360 158 755146 Westlake I & II No
172 5.82000% Actual/360 172 755104 New Center Greens No
175 6.27000% Actual/360 175 755198 000 Xxxxxxxxx Xxxxxx Xx
000 6.23000% Actual/360 179 755182 Franconia Professional Center No
191 6.21000% Actual/360 191 755107 Xxxx Xxxxxxx Xxxxxxxx Xxxxxx Xx
000 6.25000% Actual/360 219 755203 0000-0000 Xxxxxxxxxx Xxxxxx No
221 6.09000% Actual/360 221 755137 0000-0000 Xxxxxxxx Xxxxxx No
230 6.36000% Actual/360 230 755150 Cedargate Apartments No
233 6.07000% Actual/360 233 755050 Xxxxxxx Xxxx No
247 6.38000% Actual/360 247 755133 0000 Xxxxxx Xxxxxx Xx
000 6.30000% Actual/360 248 755134 0000 Xxxxx Xxxxxx Xx
000 6.31000% Actual/360 253 755171 0000 Xxxxxxxx Xxxxxxxxx Xxxx No
255 6.53000% Actual/360 255 755174 0000 Xxxxx Xxxx Xx
000 6.45000% Actual/360 260 755157 Limestone Market Place and Advanced Auto Parts No
262 6.28000% Actual/360 262 755195 Xxxxxx Xxx Xxxxxxxxxx Xx
000 6.28000% Actual/360 264 755204 000-000 Xxxxxxxxxx Xxxx Xx
000 6.40000% Actual/360 268 755153 0000-0000 Xxxxxxxx Xxx No
269 6.38000% Actual/360 269 755152 0000 Xxxxxxx Xxxxxx Yes
271 6.22000% Actual/360 271 755094 0000 X. Xxxxxxx Xxxx No
273 6.47000% Actual/360 273 755154 00000 Xxxxx Xxxxxx Xxxxxx No
277 5.98000% Actual/360 277 754996 0000 Xxxx Xxxx Xx
000 6.27000% Actual/360 278 755169 Park Place Apartments No
280 6.71000% Actual/360 280 755178 Smyrna Market Village, Building I No
292 6.36000% Actual/360 292 755125 0000 Xxxxxxxxxx Xxxxx Xx
000 6.28000% Actual/360 295 755196 Xxxxxx Apartments #1 No
296 6.28000% Actual/360 296 755197 Xxxxxx Apartments #2 No
298 6.47000% Actual/360 298 755128 0000 Xxxxxxxx Xxxxxx Xx
000 6.57000% Actual/360 302 755193 Xxxxxxxxx Xxxxxxxxxx Xx
000 6.57000% Actual/360 303 755194 Regent Apartments No
STATED
ORIGINAL TERM REMAINING TERM ORIGINAL REMAINING CROSSED
MATURITY DATE TO MATURITY OR TO MATURITY OR AMORTIZATION AMORTIZATION WITH OTHER
ID OR ARD ARD (MOS.) ARD (MOS.) TERM (MOS.) TERM (MOS.) LOANS CROSSED LOAN ID
--- ------------- -------------- -------------- ------------ ------------ ---------- ---------------
12 8/1/2016 120 119 0 0
14 9/1/2015 108 108 300 300
19 9/3/2016 120 120 360 360
24 7/1/2016 120 118 240 238
35 8/1/2016 120 119 420 419
41 8/1/2016 120 119 318 317
43 8/1/2016 120 119 360 359 Yes 755122, 755123
44 8/1/2016 120 119 360 359 Yes 755122, 755123
45 7/1/2016 120 118 0 0
56 8/1/2016 120 119 360 359
60 8/1/2016 120 119 360 359
62 7/1/2016 120 118 360 358
66 7/1/2016 120 118 360 360
77 7/1/2016 120 118 0 0
78 6/1/2016 120 117 360 357
122 8/1/2016 120 119 480 480
126 8/1/2016 120 119 360 359
134 8/1/2016 120 119 360 359
136 9/1/2016 120 120 360 360
153 7/1/2016 120 118 360 358
158 7/3/2016 120 118 360 360
172 7/1/2016 120 118 240 238
175 8/1/2016 120 119 360 359
179 8/1/2016 120 119 360 359
191 7/1/2016 120 118 360 358
219 8/1/2016 120 119 360 359
221 7/1/2016 120 118 360 358
230 9/1/2016 120 120 360 360
233 6/1/2016 120 117 360 357
247 7/1/2016 120 118 360 358
248 7/1/2016 120 118 360 358
253 7/1/2016 120 118 300 298
255 8/1/2013 84 83 420 419
260 8/1/2016 120 119 360 359
262 8/1/2016 120 119 360 359
264 9/1/2016 120 120 360 360
268 8/1/2016 120 119 360 360
269 7/1/2016 120 118 360 358
271 6/3/2016 120 117 360 357
273 8/1/2016 120 119 360 359
277 8/1/2016 120 119 240 239
278 8/1/2016 120 119 360 359
280 8/1/2016 120 119 360 360
292 7/1/2016 120 118 360 358
295 8/1/2016 120 119 360 359
296 8/1/2016 120 119 360 359
298 7/3/2016 120 118 360 358
302 8/1/2011 60 59 360 359
303 8/1/2011 60 59 360 359
OWNERSHIP SELLER LOAN
ID PREPAYMENT PROVISIONS (# OF PAYMENTS) INTERESID ID NUMBER PROPERTY NAME
--- --------------------------------------------- --------- --- ----------- ----------------------------------------------
12 LO(25)/Defeasance or GRTR1% or YM(93)/Open(2) Fee 12 755159 Aventura Commons
14 GRTR1% or YM(105)/Open(3) Fee 14 755220 1390 & 0000 Xxxxx Xxxx
19 LO(24)/Defeasance(94)/Open(2) Fee 19 755236 000 Xxxxxx Xxxxxx
24 LO(26)/Defeasance or GRTR1% or YM(90)/Open(4) Fee 24 755084 North Brunswick Manor
35 LO(25)/Defeasance or GRTR1% or YM(93)/Open(2) Fee 35 755156 Hunterstone Apartments
41 LO(25)/Defeasance(93)/Open(2) Fee 41 755168 Mansfield Village Square
43 GRTR1% or YM(117)/Open(3) Fee 43 755122 000 Xxxx Xxxxxxxxxx Xxxxxx
44 GRTR1% or YM(117)/Open(3) Fee 44 755123 000 Xxxxxx Xxxxxx
00 XXXX0% or YM(26)/Defeasance(92)/Open(2) Fee 45 755179 Xxxxxx Forest Apartments
56 GRTR1% or YM(118)/Open(2) Fee 56 755176 Gateway Plaza Shopping Center
60 LO(25)/Defeasance(93)/Open(2) Fee 60 755163 Xxxxxxx Palms Apartments
62 LO(26)/GRTR1% or YM(92)/Open(2) Fee 62 755106 Jasper Mall
66 LO(26)/Defeasance(90)/Open(4) Fee 66 755131 Aloha Market Centre
77 LO(26)/GRTR1% or YM(90)/Open(4) Fee 77 755105 City Plaza
78 LO(27)/GRTR1% or YM(91)/Open(2) Fee 78 755051 000 Xxxxxxxxxx Xxxx
000 XXXX0% or YM(118)/Open(2) Fee 122 755141 Town Center Park Apartments
126 LO(25)/Defeasance(93)/Open(2) Fee 126 755142 000 Xxxxxxxx Xxxxx
000 XXXX0% or YM(118)/Open(2) Fee 134 755155 Bel Air Center
136 LO(24)/Defeasance or GRTR1% or YM(94)/Open(2) Fee 136 755072 Judiciary Place
153 LO(26)/Defeasance(92)/Open(2) Fee 153 755102 Diho Square Shopping Center
158 LO(26)/Defeasance(92)/Open(2) Fee 158 755146 Westlake I & II
172 LO(26)/Defeasance or GRTR1% or YM(90)/Open(4) Fee 172 755104 New Center Greens
175 LO(25)/GRTR1% or YM(93)/Open(2) Fee 175 755198 000 Xxxxxxxxx Xxxxxx
179 LO(25)/GRTR1% or YM(93)/Open(2) Fee 179 755182 Franconia Professional Center
191 LO(26)/GRTR1% or YM(92)/Open(2) Fee 191 755107 Xxxx Village Shopping Center
219 LO(25)/GRTR1% or YM(93)/Open(2) Fee 219 755203 0000-0000 Xxxxxxxxxx Xxxxxx
221 LO(26)/GRTR1% or YM(92)/Open(2) Fee 221 755137 0000-0000 Xxxxxxxx Xxxxxx
230 LO(24)/GRTR1% or YM(94)/Open(2) Fee 230 755150 Cedargate Apartments
233 LO(27)/GRTR1% or YM(91)/Open(2) Fee 233 755050 Xxxxxxx Xxxx
247 LO(26)/Defeasance(92)/Open(2) Fee 247 755133 0000 Xxxxxx Xxxxxx
000 LO(26)/GRTR1% or YM(90)/Open(4) Fee 248 755134 0000 Xxxxx Xxxxxx
253 LO(26)/GRTR1% or YM(91)/Open(3) Fee 253 755171 0000 Xxxxxxxx Xxxxxxxxx Xxxx
000 LO(25)/Defeasance(46)/Open(13) Fee 255 755174 0000 Xxxxx Xxxx
000 LO(25)/GRTR1% or YM(93)/Open(2) Fee 260 755157 Limestone Market Place and Advanced Auto Parts
262 LO(25)/GRTR1% or YM(93)/Open(2) Leasehold 262 755195 Xxxxxx Way Apartments
264 LO(24)/Defeasance(94)/Open(2) Fee 264 755204 000-000 Xxxxxxxxxx Xxxx
268 LO(25)/GRTR1% or YM(91)/Open(4) Fee 268 755153 0000-0000 Xxxxxxxx Xxx
269 LO(26)/GRTR1% or YM(92)/Open(2) Fee 269 755152 0000 Xxxxxxx Xxxxxx
271 LO(27)/Defeasance(91)/Open(2) Fee 271 755094 0000 X. Xxxxxxx Xxxx
273 LO(25)/Defeasance(93)/Open(2) Fee 273 755154 00000 Xxxxx Xxxxxx Xxxxxx
277 LO(25)/GRTR1% or YM(93)/Open(2) Fee 277 754996 0000 Xxxx Xxxx
000 LO(25)/GRTR1% or YM(93)/Open(2) Fee 278 755169 Park Place Apartments
280 LO(25)/GRTR1% or YM(93)/Open(2) Fee 280 755178 Smyrna Market Village, Building I
292 LO(26)/GRTR1% or YM(92)/Open(2) Fee 292 755125 0000 Xxxxxxxxxx Xxxxx
295 LO(25)/GRTR1% or YM(93)/Open(2) Fee 295 755196 Xxxxxx Apartments #1
296 LO(25)/GRTR1% or YM(93)/Open(2) Fee 296 755197 Xxxxxx Apartments #2
298 LO(26)/Defeasance(92)/Open(2) Fee 298 755128 0000 Xxxxxxxx Xxxxxx
302 LO(25)/GRTR1% or YM(33)/Open(2) Fee 302 755193 Xxxxxxxxx Apartments
303 LO(25)/GRTR1% or YM(33)/Open(2) Fee 303 755194 Regent Apartments
ADMINISTRATIVE LETTER OF
ID LOAN SELLER FEE RATE DUE DATE GRACE PERIOD (PRIOR TO LATE FEES) CREDIT
--- ----------- -------------- -------- ------------------------------------------------ ---------
12 PCF II 0.03153% 1st 5
14 PCF II 0.03153% 1st 0
19 PCF II 0.03153% 3rd 0
24 PCF II 0.03153% 1st 5
35 PCF II 0.03153% 1st 15
41 PCF II 0.03153% 1st 0
43 PCF II 0.03153% 1st 0 Yes
44 PCF II 0.03153% 1st 0 Yes
45 PCF II 0.03153% 1st 0
56 PCF II 0.03153% 1st 0
60 PCF II 0.03153% 1st 0
62 PCF II 0.03153% 1st 0
66 PCF II 0.03153% 1st 0
77 PCF II 0.03153% 1st 0
78 PCF II 0.03153% 1st 0
122 PCF II 0.03153% 1st 3 days (max 4 late payments without late charge,
thereafter no grace period)
126 PCF II 0.03153% 1st 0 Yes
134 PCF II 0.03153% 1st 0
136 PCF II 0.03153% 1st 0
153 PCF II 0.03153% 1st 0
158 PCF II 0.03153% 3rd 15
172 PCF II 0.03153% 1st 5
175 PCF II 0.03153% 1st 0
179 PCF II 0.03153% 1st 0
191 PCF II 0.03153% 1st 0
219 PCF II 0.03153% 1st 0 Yes
221 PCF II 0.03153% 1st 0
230 PCF II 0.03153% 1st 0
233 PCF II 0.03153% 1st 15
247 PCF II 0.03153% 1st 0
248 PCF II 0.03153% 1st 0 Yes
253 PCF II 0.03153% 1st 0
255 PCF II 0.03153% 1st 0
260 PCF II 0.03153% 1st 0
262 PCF II 0.03153% 1st 0
264 PCF II 0.03153% 1st 0
268 PCF II 0.03153% 1st 0
269 PCF II 0.03153% 1st 0
271 PCF II 0.03153% 3rd 0
273 PCF II 0.03153% 1st 0
277 PCF II 0.03153% 1st 0
278 PCF II 0.03153% 1st 0
280 PCF II 0.03153% 1st 0
292 PCF II 0.03153% 1st 0
295 PCF II 0.03153% 1st 0
296 PCF II 0.03153% 1st 0
298 PCF II 0.03153% 3rd 0
302 PCF II 0.03153% 1st 0
303 PCF II 0.03153% 1st 0
ID LETTER OF CREDIT DESCRIPTION LOAN SPONSOR
--- ----------------------------------------- -----------------------------------------------------------------------
12 Xxxxxxxxx, Xxxxxxx
14 Xxxxx, Xxxxxxx
19 Sarofim Investors Realty Fund P-III
24 Xxxxxxx, Xxxxx; Xxx Xxxxxxx; Xxxxxxx Xxxx; Xxxxxxx Xxxx
35 Xxxxxxx, Xxxx; Xxxxxx Xxxxxxx
41 Xxxx, Xxxxxxx; Xxxxxxx Xxxx; Xxxx Xxxx
43 $110,000 (LOC) - Upfront TI/XX Xxxxxxxxx, Xxxxxxx X.
44 $210,000 (LOC) - Upfront TI/XX Xxxxxxxxx, Xxxxxxx X.
45 WAFRA/AREF RE Venture Co Xxxxxx LLC; Titan Real Estate Investment Group
56 Xxxxxx, Xxxxx; Xxxxx Xxxxxx; Xxxxxx X'Xxxx; Xxxxxxxx X'Xxxx;
Xxxxxxxxx Xxxxxxxxxx; Xxxx Xxxxxx; Xxxx Xxxxxx; Xxxx Xxxxxx
60 Xxxx, Xxxxxxx; Xxxxxxx Xxxx; Xxxx Xxxx
62 Xxxxx, Xxxxxx X.
66 Xxxxxxxxx, Xxxx
77 Xxxxx, Xxxxxx
78 Xxxxxxxx, Xxxxxx X.
122 Xxxxxxxxxx, Xxxxxxxx; Xxxxxxx Xxxx; Xxx Xxxxxxxxx; Xxxxxxx XxXxxxx
126 Additional Security - $200,000 (LOC) Xxxxx, Xxxxxx X.
134 Xxxxx, Xxxx
136 Xxxxxx, Xxxxxxx X.; Xxxxxxx X. Xxxxxx, Xx
153 Xxxx, X.X.
158 GRS City of Detroit
172 Xxxxxxx, Xxxxx; Xxxx Xxxxxxx; Xxxxxxx Xxxx; Xxxxxxx Xxxx
175 Park, Xxxx Xxxx
179 Xxxxx, Xxxxxx; Xxxxxxxxxx Xxxxxxxxxx
191 Xxxxxxx, Xxxxxxx X.; Xxxxx X. Xxxxxxx; Xxxxxxx Xxxxxxx Xxxxx;
Xxxxxxxx Xxxxx; Xxxxx X. Xxxxxxxx; Xxxx Xxxxxxx-Xxxxxxx
219 Upfront TI/LC - $85,895 (LOC) Aflalo, Solomon
221 Xxxxxx, Xxxxxxx; Xxxxxxxxx XxXxxxxx
230 Xxxxxxxxxx, Xxx; Xxxxxxx Xxxxxxx
233 Xxxxxxxxx, Xxxx; Xxxxx XxXxxxxxx
247 Xxxxx, Xxxx; Xxxxx Xxxxx
248 Upfront TI/LC - $185,700 (LOC) Xxxxx, Xxxxxx X.
000 Xxxxxxx, Xxxx X.
000 XX Value Partners, LLC
000 Xxxxxxx, Xxxxxxx X.
262 Xxxx, Xxxxxx X.; Xxxx Xxxxxxx; Xxxxxx X'Xxxxxx; Xxxx Xxxx; Xxxxxxx Xxxx
264 Xxxxxx, Xxxxx
268 Xxxxxx, Xxxxxxxx; Xxxxx Xxxxxx; Xxxxxx Xxxxxx; Xxxxx Xxxxxx
269 Xxxxxxxx Jr., Xxxxxx; Xxxxxxxxxxx Xxxxxx
271 Xxxxx, Xxxx X.; Xxxxxxxx X. XxXxxxxxxx
273 Xxxxxxxxx, Xxxxx; Xxxx Xxxxxx
277 Xxxxxxx, Xxxxxxx
278 Xxxxxx, Xxxxxxx; Xxxx Xxxxxxxxxx; Xxxxx Xxxxxx
280 Xxxxxxxxx, Xxxxxxxx; Xxxxxxx Xxxxxxxxx
292 Xxxxxxx, Xxxx X.; Xxxxxxxx X. Xxxxxxx
295 Xxxx, Xxxxxx X.; Xxxx Xxxxxxx; Xxxxxx X'Xxxxxx; Xxxx Xxxx; Xxxxxxx Xxxx
296 Xxxx, Xxxxxx X.; Xxxx Xxxxxxx; Xxxxxx X'Xxxxxx; Xxxx Xxxx; Xxxxxxx Xxxx
298 Xxxxx, Xxxx X.; Xxxxxxxx X. XxXxxxxxxx
302 Xxxx, Xxxxxx X.; Xxxx Xxxxxxx; Xxxxxx X'Xxxxxx; Xxxx Xxxx; Xxxxxxx Xxxx
303 Xxxx, Xxxxxx X.; Xxxx Xxxxxxx; Xxxxxx X'Xxxxxx; Xxxx Xxxx; Xxxxxxx Xxxx
INITIAL MASTER
INITIAL MASTER SERVICING FEE
ID SERVICER RATE
--- -------------- --------------
12 WFB 0.03050%
14 WFB 0.03050%
19 WFB 0.03050%
24 WFB 0.03050%
35 WFB 0.03050%
41 WFB 0.03050%
43 WFB 0.03050%
44 WFB 0.03050%
45 WFB 0.03050%
56 WFB 0.03050%
60 WFB 0.03050%
62 WFB 0.03050%
66 WFB 0.03050%
77 WFB 0.03050%
78 WFB 0.03050%
122 WFB 0.03050%
126 WFB 0.03050%
134 WFB 0.03050%
136 WFB 0.03050%
153 WFB 0.03050%
158 WFB 0.03050%
172 WFB 0.03050%
175 WFB 0.03050%
179 WFB 0.03050%
191 WFB 0.03050%
219 WFB 0.03050%
221 WFB 0.03050%
230 WFB 0.03050%
233 WFB 0.03050%
247 WFB 0.03050%
248 WFB 0.03050%
253 WFB 0.03050%
255 WFB 0.03050%
260 WFB 0.03050%
262 WFB 0.03050%
264 WFB 0.03050%
268 WFB 0.03050%
269 WFB 0.03050%
271 WFB 0.03050%
273 WFB 0.03050%
277 WFB 0.03050%
278 WFB 0.03050%
280 WFB 0.03050%
292 WFB 0.03050%
295 WFB 0.03050%
296 WFB 0.03050%
298 WFB 0.03050%
302 WFB 0.03050%
303 WFB 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
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE MORTGAGE LOAN
SELLER'S KNOWLEDGE" AND OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN,
EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE
OF THE MORTGAGE LOAN SELLER, ITS OFFICERS AND EMPLOYEES RESPONSIBLE FOR THE
UNDERWRITING, ORIGINATION, SERVICING OR SALE OF THE MORTGAGE LOANS REGARDING THE
MATTERS EXPRESSLY SET FORTH BELOW IN EACH CASE WITHOUT HAVING CONDUCTED ANY
INDEPENDENT INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO
(EXCEPT (I) HAVING SENT TO THE SERVICERS SERVICING THE MORTGAGE LOANS ON BEHALF
OF THE MORTGAGE LOAN SELLER, IF ANY, SPECIFIC INQUIRIES REGARDING THE MATTERS
REFERRED TO AND (II) AS EXPRESSLY SET FORTH HEREIN). ALL INFORMATION CONTAINED
IN DOCUMENTS WHICH ARE PART OF OR REQUIRED TO BE PART OF A MORTGAGE FILE, AS
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (TO THE EXTENT SUCH DOCUMENTS
EXIST) SHALL BE DEEMED WITHIN THE MORTGAGE LOAN SELLER'S KNOWLEDGE.
The Mortgage Loan Seller hereby represents and warrants that, as of
the date herein below specified or, if no such date is specified, as of the
Closing Date, except with respect to the Exceptions described on Schedule C to
this Agreement and subject to Section 17 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this
Agreement.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan. The Mortgage
Loan Seller has full right, power and authority to transfer and assign each
Mortgage Loan to or at the direction of the Purchaser free and clear of any and
all pledges, liens, charges, security interests, participation interests and/or
other interests and encumbrances. Upon consummation of transactions contemplated
by this Agreement, the Mortgage Loan Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Mortgage Loan Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, the Mortgage Loan is not,
and in the prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months), has not been, 30 days or
more past due in respect of any Monthly Payment without giving effect to any
applicable grace period. If the Mortgage Loan Seller was the originator of the
Mortgage Loan, the Mortgage Loan has not been 60 days or more past due in
respect of any Monthly Payment (without
1
giving effect to any applicable grace period) at any time since the date of
origination. If the Mortgage Loan Seller was not the originator of the Mortgage
Loan, the Mortgage Loan has not, to the Mortgage Loan Seller's knowledge, been
60 days or more past due in respect of any Monthly Payment (without giving
effect to any applicable grace period) at any time since the date of
origination.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy, a preliminary title policy with escrow instructions, or a
"marked-up" commitment, in each case binding upon the title insurer), none of
which (individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer), none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(d) other matters to which like properties are commonly subject, none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (e) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property which the Mortgage Loan
Seller did not require to be subordinated to the lien of such Mortgage and which
do not (individually or in the aggregate) materially interfere with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (f) condominium declarations of record and identified in such lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer) and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (g) being herein referred to as the
"Permitted Encumbrances"). Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments and UCC Financing
Statements, establishes and creates a valid and, subject to the exceptions
2
set forth in Paragraph 13 below, enforceable security interest in favor of the
holder thereof in all items of personal property owned by the related Borrower
which are material to the conduct in the ordinary course of the Borrower's
business on the related Mortgaged Property. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller) and
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), and 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.
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
3
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 (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
4
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 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
5
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 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
6
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 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
7
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 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
8
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 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
9
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;
(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
10
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 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)).
11
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 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
12
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
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
13
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 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
14
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.
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
15
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.
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
16
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 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.
17
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.
SCHEDULE C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Sch. C-1
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed Certificate attached at Tab ___.
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 June 8, 2006 (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 21st day of June, 2006.
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 ___.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(viii)
Executed opinion attached at Tab ___ and Tab ___.
Ex. D-3C-1
