EXECUTION VERSION
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"), is
dated and effective as of December 13, 2007, between Bear Xxxxxxx Commercial
Mortgage, Inc. ("BSCMI"), 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
BSCMI desires to sell, assign, transfer, set over and otherwise convey
to BSCMSI, without recourse, representation or warranty, other than as set forth
herein, and BSCMSI desires to purchase, subject to the terms and conditions set
forth herein, the multifamily and commercial mortgage loans (collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"), as such schedule may be amended from time to time
pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the primary assets of
which will be a segregated pool of multifamily and commercial mortgage loans
that includes the Mortgage Loans and certain other commercial and multifamily
mortgage loans (collectively, the "Trust Mortgage Loans"). Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., Fitch,
Inc., and DBRS, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of December 1, 2007 (the "Pooling and Servicing
Agreement"), among BSCMSI, as depositor (in such capacity, the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such capacity, a
"Master Servicer"), Xxxxx Fargo Bank, National Association, as a master servicer
(in such capacity, a "Master Servicer"), as certificate administrator (in such
capacity, the "Certificate Administrator") and as tax administrator (in such
capacity, the "Tax Administrator"), Centerline Servicing Inc., as a special
servicer (a "Special Servicer"), and LaSalle Bank National Association, as
trustee (the "Trustee"). Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement as in full force and effect on the Closing Date (as defined in Section
1 hereof). It is anticipated that BSCMSI will transfer the Mortgage Loans to the
Trust contemporaneously with its purchase of the Mortgage Loans hereunder.
BSCMSI intends to sell the Registered Certificates to Bear, Xxxxxxx &
Co. Inc. ("BSC") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"; and
together with BSC in such capacity, the "Underwriters"), pursuant to an
underwriting agreement, dated the date hereof (the "Underwriting Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the remaining
Certificates (the "Non-Registered Certificates") to BSC and Xxxxxx Xxxxxxx
(together in such capacities, the "Initial Purchasers") pursuant to a
certificate purchase agreement, dated the date hereof (the "Certificate Purchase
Agreement"), among BSCMSI and
the Initial Purchasers. The Registered Certificates are more fully described in
the prospectus dated November 30, 2007 (the "Base Prospectus"), and the
supplement to the Base Prospectus dated December 13, 2007 (the "Prospectus
Supplement"; and, together with the Base Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The Non-Registered
Certificates are more fully described in the private placement memorandum dated
the date hereof (the "Memorandum"), as it may be amended or supplemented at any
time hereafter.
BSCMI 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 the Depositor, the Underwriters
and the Initial Purchasers.
As used herein, "Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(January 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller agrees to
sell, assign, transfer, set over and otherwise convey to the Purchaser,
without recourse, representation or warranty, other than as set forth
herein, and the Purchaser agrees to purchase from the Mortgage Loan Seller,
subject to the terms and conditions set forth herein, the Mortgage Loans.
The purchase and sale of the Mortgage Loans shall take place on December
27, 2007 or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). As of the Cut-off Date, the Mortgage Loans
will have an aggregate principal balance, after application of all payments
of principal due on the Mortgage Loans on or before such date, whether or
not received, of $608,343,357, subject to a variance of plus or minus 5%.
The purchase price for the Mortgage Loans shall equal the amount set forth
as such purchase price in a letter dated as of December 27, 2007, between
the parties to this Agreement, which purchase price excludes accrued
interest and applicable deal expenses. The Purchaser shall pay such
purchase price, plus interest accrued on the Mortgage Loans from the
Cut-off Date to the Closing Date and any applicable deal expenses, to the
Mortgage Loan Seller on the Closing Date by wire transfer in immediately
available funds or by such other method as shall be mutually acceptable to
the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and the other conditions
to the Mortgage Loan Seller's obligations set forth herein, the Mortgage
Loan Seller does hereby sell,
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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 the Mortgage Loans and all documents included in the related Mortgage
Files and Servicing Files. Such assignment includes all scheduled payments
of principal and interest under and proceeds of the Mortgage Loans received
after their respective Cut-off Dates (other than scheduled payments of
interest and principal due on or before their respective Cut-off Dates,
which shall belong and be promptly remitted to the Mortgage Loan Seller)
together with all documents delivered or caused to be delivered hereunder
with respect to such Mortgage Loans by the Mortgage Loan Seller (including
all documents included in the related Mortgage Files and Servicing Files
and any related Additional Collateral). The Purchaser shall be entitled to
receive all scheduled payments of principal and interest due on the
Mortgage Loans after their respective Cut-off Dates, and all other
recoveries of principal and interest collected thereon after their
respective Cut-off Dates (other than scheduled payments of principal and
interest due on the Mortgage Loans on or before their respective Cut-off
Dates and collected after such respective Cut-off Dates, which shall belong
to the Mortgage Loan Seller). In no event, however, shall such conveyance
and assignment constitute or be construed as an assumption by the Purchaser
of, in the case of any Mortgage Loan that is part of a Mortgage Loan Group,
any obligation or liability that is imposed only on the initial holder of
such Mortgage Loan under the terms of the related Mortgage Loan Group
Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Mortgage Loan Seller shall not take any
action inconsistent with the Purchaser's ownership of the Mortgage Loans. Except
for actions that are the express responsibility of another party hereunder or
under the Pooling and Servicing Agreement, and further except for actions that
the Mortgage Loan Seller is expressly permitted to complete subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the related rights
and property accomplished hereby is intended by the parties hereto to
constitute a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right, title and interest in and to such Mortgage Loans and such
other related rights and property by the Mortgage Loan Seller to the
Purchaser. Furthermore, it is not intended that such conveyance be a pledge
of security for a loan. If such conveyance is determined to be a pledge of
security for a loan, however, then: (i) this Agreement shall constitute a
security agreement under applicable law; (ii) the Mortgage Loan Seller
shall be deemed to have granted to the Purchaser a first priority security
interest in all of the Mortgage Loan Seller's right, title and interest in
and to the Mortgage Loans and all amounts payable to the holder(s) of the
Mortgage Loans in accordance with the terms thereof (other than scheduled
payments of interest and principal due and payable on such Mortgage Loans
on or prior to their respective Cut-off Dates or, in the case of a
Replacement Pooled Mortgage Loan, on or prior to the related date of
substitution); (iii) the assignment by BSCMSI to the Trustee of its
interests in the Mortgage Loans as contemplated by Section 15 hereof shall
be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the
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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) for each Mortgage Loan. Notwithstanding the
preceding sentence, if the Mortgage Loan Seller cannot so deliver, or cause
to be delivered, as to any Mortgage Loan (exclusive of any Mortgage Loan
that constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the original
or a copy of any of the documents and/or instruments referred to in clauses
(ii), (iii), (vii) and (ix)(A) of the definition of "Mortgage File", with
evidence of recording or filing (if applicable, and as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation
or filing, as the case may be, then (subject to the obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or cause to
be made reasonably diligent efforts to obtain such document or instrument
(with such evidence) if it is not returned within a reasonable period after
the date when it was transmitted for recording and (2) deliver such
document or instrument to the Trustee or a Custodian appointed thereby (if
such document or instrument is not otherwise returned to the Trustee or
such Custodian) promptly upon the Mortgage Loan Seller's receipt thereof),
so long as a copy of such document or instrument, certified by the Mortgage
Loan Seller or title agent as being a copy of the document deposited for
recording or filing and (in the case of such clause (ii)) accompanied by an
Officer's Certificate of the Mortgage Loan Seller or a statement from the
title agent to the effect that such original Mortgage has been sent to the
appropriate public recording official for recordation, has been delivered
to the Trustee on or before the date that is 45 days following the Closing
Date, the delivery requirements of this subsection shall be deemed to have
been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related
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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 the Mortgage Loan Seller's rights as the
beneficiary thereof and drawing party thereunder. Furthermore, with respect
to each Mortgage Loan, if any, as to which there exists a secured creditor
impaired property insurance policy or pollution limited liability
environmental impairment policy covering the related Mortgaged Property,
the Mortgage Loan Seller shall cause such policy, within a reasonable
period following the Closing Date, to inure to the benefit of the Trustee
for the benefit of the Certificateholders (if and to the extent that it
does not by its terms automatically inure to the holder of such Mortgage
Loan). For purposes of this paragraph, the relevant definition of "Mortgage
File" shall be the definition of such term set forth in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date.
(d) 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
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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 or
Mortgage Loan Seller's designee 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 or Mortgage Loan Seller's designee 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's designee has been appointed to receive such
assignment or such UCC Financing Statement following filing with the public
recording office, the Mortgage Loan Seller's designee shall, within a
reasonable time period, deliver such assignment or such UCC Financing
Statement to the Trustee. If the Mortgage Loan Seller receives written
notice that any assignment or other instrument of transfer with respect to
the Mortgage Loans is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Mortgage Loan Seller shall prepare
or cause the preparation of a substitute therefor or cure such defect, as
the case may be. The Mortgage Loan Seller shall be responsible for all
reasonable out-of-pocket costs and expenses associated with recording
and/or filing any and all assignments and other instruments of transfer
with respect to the Mortgage Loans that are required to be recorded or
filed, as the case may be, under the Pooling and Servicing Agreement;
provided that the Mortgage Loan Seller shall not be responsible for
actually recording or filing any such assignments or other
instruments of transfer or for costs and expenses that the related
Borrowers have agreed to pay. With respect to each Mortgage, Assignment of
Leases and UCC Financing Statement that has been recorded in the name of
MERS or its designee (if any), the Mortgage Loan Seller shall take all
actions as are necessary to cause the Trustee to be shown as the owner of
such Mortgage, Assignment of Leases or UCC Financing Statement on the
records of MERS.
(e) In connection with the Mortgage Loan Seller's assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense,
shall deliver to and deposit with, or cause to be delivered to and
deposited with, the applicable Master Servicer, on or before the date that
is 45 days after the Closing Date, in the case of the items in clause (i)
below, and 20 days after the Closing Date, in the case of the items in
clause (ii) below, the following items (except to the extent that any of
the following items are to be retained by a Primary Servicer or
Sub-Servicer that will continue to act on behalf of the applicable Master
Servicer as contemplated by 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
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statements, appraisals, environmental/engineering reports, transaction
screens, seismic assessment reports, leases, rent rolls, insurance policies
and certificates, major space leases, legal opinions and tenant estoppels
and any other relevant documents relating to the origination and servicing
of any Mortgage Loan that are reasonably necessary for the ongoing
administration and/or servicing of the applicable Mortgage Loan in the
possession or under the control of the Mortgage Loan Seller that relate to
the Mortgage Loans transferred by it to the Purchaser and, to the extent
that any original documents are not required to be a part of a Mortgage
File for any such Mortgage Loan, originals or copies of all documents,
certificates and opinions in the possession or under the control of the
Mortgage Loan Seller that were delivered by or on behalf of the related
Borrowers in connection with the origination of such Mortgage Loans
(provided that the Mortgage Loan Seller shall not be required to deliver
any attorney-client privileged communication, draft documents or any
documents or materials prepared by it or its Affiliates for internal uses,
including without limitation, credit committee briefs or memoranda and
other internal approval documents); and (ii) all unapplied Reserve Funds
and Escrow Payments in the possession or under the control of the Mortgage
Loan Seller that relate to the Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Mortgage Loan Seller shall report its
transfer of the Mortgage Loans to the Purchaser, as provided herein, as a
sale of the Mortgage Loans to the Purchaser in exchange for the
consideration specified in Section 1 hereof. In connection with the
foregoing, the Mortgage Loan Seller shall cause all of its records to
reflect such transfer as a sale (as opposed to a secured loan) and to
reflect that the Mortgage Loans are no longer property of the Mortgage Loan
Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and
Servicing Agreement. The Mortgage Loan Seller shall, within 15 days of its
discovery or receipt of notice of any error on the Mortgage Loan Schedule,
amend such Mortgage Loan Schedule and deliver to the Purchaser or the
Trustee, as the case may be, an amended Mortgage Loan Schedule; provided
that this sentence shall not be construed to relieve the Mortgage Loan
Seller of any liability for any related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with any
examination of the Mortgage Files for, and any other documents and records
relating to, the Mortgage Loans, that may be undertaken by or on behalf of
the Purchaser on or before the Closing Date. The fact that the Purchaser
has conducted or has failed to conduct any partial or complete examination
of any of the Mortgage Files for, and/or any of such other documents and
records relating to, the Mortgage Loans, shall not affect the Purchaser's
right to pursue any remedy available in equity or at law for a breach of
the Mortgage Loan Seller's representations and warranties made pursuant to
Section 4, except as expressly set forth in Section 5.
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SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(and, in connection with any replacement of a Defective Mortgage Loan (as
defined in Section 4(d) hereof) with one or more Replacement Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a) hereof,
as of the related date of substitution), to and for the benefit of the
Purchaser, each of the representations and warranties set forth in Exhibit
B-1. The Purchaser hereby makes, as of the Closing Date, to and for the
benefit of the Mortgage Loan Seller, each of the representations and
warranties set forth in Exhibit B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing Date
(or as of such other date specifically provided in the particular
representation or warranty), to and for the benefit of the Purchaser, each
of the representations and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as
of the Closing Date, to and for the benefit of BSCMSI only, that the
Mortgage Loan Seller has not dealt with any broker, investment banker,
agent or other person (other than the Depositor, the Underwriters and the
Initial Purchasers) who may be entitled to any commission or compensation
in connection with the sale to the Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and warrants that,
with respect to the Mortgage Loans and the Mortgage Loan Seller's role as
"originator" (or the role of any third party as "originator" of any
Mortgage Loan for which the Mortgage Loan Seller was not the originator)
and "sponsor" in connection with the issuance of the Registered
Certificates, the information regarding the Mortgage Loans, the related
Borrowers, the related Mortgaged Properties and/or the Mortgage Loan Seller
contained in the Prospectus Supplement complies in all material respects
with the applicable disclosure requirements of Regulation AB.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Mortgage Loan Seller hereby agrees to
provide the Purchaser (or with respect to any Serviced Non-Pooled Pari
Passu Companion Loan that is deposited into an Other Securitization, the
depositor in such Other Securitization) and the Certificate Administrator
with any Additional Form 10-D Disclosure and any Additional Form 10-K
Disclosure opposite which "Pooled Mortgage Loan Seller" is set forth on
Schedule IX and Schedule X to the Pooling and Servicing Agreement within
the time periods and in accordance with the provisions set forth in the
Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be
deemed to make to and for the benefit of the Purchaser, as of the date of
substitution, with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan") that is substituted for a Defective Mortgage Loan, by the
Mortgage Loan Seller pursuant to Section 5(a) of this
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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.
(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
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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 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:
10
(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 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
11
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.
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.
12
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 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,
13
(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:
(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
14
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;
(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 New York not earlier than 60 days prior to the Closing
Date, and upon which the Interested Parties may rely;
15
(v) A Certificate of the Mortgage Loan Seller
substantially in the form of Exhibit D-2 hereto, executed by an
executive officer of the Mortgage Loan Seller on the Mortgage
Loan Seller's behalf and dated the Closing Date, and upon which
the Interested Parties may rely;
(vi) The written opinion of in-house counsel for the
Mortgage Loan Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3A hereto (with such
additions, deletions or modifications as may be required by
either Rating Agency);
(vii) A written opinion of Cadwalader, Xxxxxxxxxx &
Xxxx LLP, special counsel for the Mortgage Loan Seller, dated the
Closing Date and addressed to the Interested Parties and the
Trustee, which opinion shall be substantially in the form of
Exhibit D-3B hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(viii) A letter from Cadwalader, Xxxxxxxxxx & Xxxx LLP,
special counsel for the Mortgage Loan Seller, dated the Closing
Date and addressed to BSCMSI and the Underwriters, which letter
shall be substantially in the form of Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel
for the Mortgage Loan Seller to the Rating Agencies in connection
with the transactions contemplated by this Agreement, including,
but not limited to, with respect to the characterization of the
transfer of the Mortgage Loans hereunder as a true sale, with
each such opinion to be addressed to the other Interested Parties
and the Trustee or accompanied by a letter signed by such counsel
stating that the other Interested Parties and the Trustee may
rely on such opinion as if it were addressed to them as of date
thereof;
(x) One or more comfort letters from Deloitte & Touche
LLP, certified public accountants, dated the date of any
preliminary Prospectus Supplement, the Prospectus Supplement and
the Memorandum, respectively, and addressed to, and in form and
substance acceptable to, the Interested Parties (other than the
Rating Agencies), stating in effect that, using the assumptions
and methodology used by BSCMSI or the Underwriters, as
applicable, all of which shall be described in such letters, they
have recalculated such numbers and percentages relating to the
Mortgage Loans set forth in any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum,
compared the results of their calculations to the corresponding
items in any preliminary Prospectus Supplement, the Prospectus
Supplement and the Memorandum, respectively, and found
16
each such number and percentage set forth in any preliminary
Prospectus Supplement, the Prospectus Supplement and the
Memorandum, respectively, to be in agreement with the results of
such calculations; and
(xi) Such further certificates, opinions and documents
as the Purchaser may reasonably request or any Rating Agency may
require.
SECTION 8. Costs. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of a settlement
statement dated the Closing Date.
SECTION 9. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and
confirmed by similar mailed writing, if to the Purchaser, addressed to the
Purchaser at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J.
Xxxxxxxxxxx Xxxxxxx, Senior Managing Director, Commercial Mortgage
Department (with copies to the attention of Xxxxxx X. Cedar, Senior
Managing Director, Legal Department), or such other address as may be
designated by the Purchaser to the Mortgage Loan Seller in writing, or, if
to the Mortgage Loan Seller, addressed to the Mortgage Loan Seller at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx
Xxxxxxx, Senior Managing Director, Commercial Mortgage Department (with
copies to the attention of Xxxxxx X. Cedar, Senior Managing Director, Legal
Department), or such other address as may be designated by the 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.
17
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
18
hereto, BSCMSI is expressly authorized to assign its rights under this
Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent
of any such assignment, the Trustee, for the benefit of the registered
holders and beneficial owners of the Certificates, shall be the Purchaser
hereunder. Subject to the foregoing, this Agreement shall bind and inure to
the benefit of and be enforceable by the Mortgage Loan Seller and the
Purchaser, and their respective successors and permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall provide the
Purchaser with such information about itself, the Mortgage Loans and the
underwriting and servicing procedures applicable to the Mortgage Loans as
is (i) customary in commercial mortgage loan securitization transactions,
(ii) required by a Rating Agency or a governmental agency or body or (iii)
reasonably requested by the Purchaser for use in a public or private
disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain
groups of Mortgage Loans are, in the case of each such particular group of
Mortgage Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted and cross-collateralized, if identified as such on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property
that relates or corresponds to any of the Mortgage Loans referred to in
this Section 17 shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties
set forth in Exhibit C hereto and each of the capitalized terms used herein
but defined in the Pooling and Servicing Agreement, shall be interpreted in
a manner consistent with this Section 17. In addition, if there exists with
respect to any Cross-Collateralized Group only one original of any document
referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein,
and this Agreement supersedes any prior agreements and/or understandings,
written or oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
19
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.
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director/Principal
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
BSCMI MLPA
EXHIBIT A
SCHEDULE OF BSCMI POOLED MORTGAGE LOANS
Ex. A-1
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR18
MORTGAGE LOAN SCHEDULE
SELLER CMSA CMSA
LOAN ID ID LOAN NO. PROPERTY NO. PROPERTY NAME (1)
-----------------------------------------------------------------------------------
51254 3 3 Solo Cup Industrial Portfolio
51254 0-x 0-000 Xxxx Xxx - Xxxxxx, XX
00000 3-b 0-000 Xxxx Xxx - Xxxxxxx, XX
00000 0-x 0-000 Xxxx Xxx - Xxxxxxxxxxxx, XX
00000 3-d 0-000 Xxxx Xxx - Xxxxxxx, XX
-----------------------------------------------------------------------------------
51254 3-e 3-005 Solo Cup - Xxxxxxx, XX
00000 0-x 0-000 Xxxx Xxx - Xxxxxx, XX
00000 5 5 RRI Hotel Portfolio
51468 5-a 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxx
00000 5-b 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx Alexandria
-----------------------------------------------------------------------------------
51468 5-c 0-000 Xxx Xxxx Xxx Xxxxxxxxxxx XXX
00000 5-d 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxxx
00000 5-e 0-000 Xxx Xxxx Xxx Xxx Xxxxxxx Xxxxxxxx
00000 5-f 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxxxxx
00000 5-g 5-007 Red Roof Inn Naples
-----------------------------------------------------------------------------------
51468 5-h 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxxx
00000 5-i 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxx Xxxxxx
00000 5-j 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxxx
00000 5-k 0-000 Xxx Xxxx Xxx Xxxxx Xxxxxxxxxxx
00000 5-l 5-012 Red Roof Inn Laredo
-----------------------------------------------------------------------------------
51468 5-m 0-000 Xxx Xxxx Xxx Xxxxxxxx Jessup
51468 5-n 0-000 Xxx Xxxx Xxx Xxxxx Xxxxx
00000 5-o 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx
00000 5-p 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxx
00000 5-q 5-017 Red Roof Inn Albany
-----------------------------------------------------------------------------------
51468 5-r 0-000 Xxx Xxxx Xxx Xxxxxxxxxxx
00000 5-s 0-000 Xxx Xxxx Xxx Xx. Xxxxx
00000 5-t 0-000 Xxx Xxxx Xxx Xx Xxxxxx Xxxxxxx Xxxxxxxxxxxx
00000 5-u 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxx
00000 5-v 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------
00000 5-w 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxxxx
00000 5-x 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxx
00000 5-y 0-000 Xxx Xxxx Xxx Xxxxx
00000 5-z 0-000 Xxx Xxxx Xxx Xxxxxxx
00000 5-aa 5-027 Red Roof Inn Allentown Bethlehem
-----------------------------------------------------------------------------------
51468 5-ab 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxxxxxxx
00000 5-ac 5-029 Red Roof Inn Chicago Downers Grove
51468 5-ad 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxx
00000 5-ae 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxx
00000 5-af 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxx
-----------------------------------------------------------------------------------
00000 5-ag 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx Xxxxxx
00000 5-ah 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxx Xxxxxx
00000 5-ai 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxx
00000 5-aj 0-000 Xxx Xxxx Xxx Xxxxxxxx
00000 5-ak 5-037 Red Roof Inn Austin South
-----------------------------------------------------------------------------------
51468 5-al 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxxxx
00000 5-am 5-039 Red Roof Inn Raleigh Downtown NCSU
51468 5-an 0-000 Xxx Xxxx Xxx Xx Xxxx Xxxx
00000 5-ao 0-000 Xxx Xxxx Xxx Xxxxxxxx
00000 5-ap 5-042 Red Roof Inn Raleigh Southwest Cary
-----------------------------------------------------------------------------------
51468 5-aq 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxx
00000 5-ar 0-000 Xxx Xxxx Xxx Xxxxx Xxxxx
00000 5-as 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxx
00000 5-at 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxx
00000 5-au 5-047 Red Roof Inn Greensboro Coliseum
-----------------------------------------------------------------------------------
51468 5-av 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxxxxxxxxx
00000 5-aw 0-000 Xxx Xxxx Xxx Xxxxxxxx
00000 5-ax 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxxx
00000 5-ay 0-000 Xxx Xxxx Xxx Xxxxx
00000 5-az 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxx
-----------------------------------------------------------------------------------
51468 5-ba 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxxx Xxxxx
00000 5-bb 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxx Xxxxxxxxxxxx
00000 5-bc 5-055 Red Roof Inn Orlando Convention Center
51468 5-bd 5-056 Red Roof Inn Xxxxxxx Xxxx Xxxxxx Xxxx
00000 5-be 5-057 Red Roof Inn Huntington
-----------------------------------------------------------------------------------
51468 5-bf 0-000 Xxx Xxxx Xxx Xxxxxxxxx
00000 5-bg 0-000 Xxx Xxxx Xxx Xxxxxxx
00000 5-bh 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxx
00000 5-bi 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxx
00000 5-bj 5-062 Red Roof Inn Chicago Arlington Heights
-----------------------------------------------------------------------------------
51468 5-bk 5-063 Red Roof Inn Toledo University
51468 5-bl 0-000 Xxx Xxxx Xxx Xxxxxxxxx
00000 5-bm 0-000 Xxx Xxxx Xxx Xxxxxxxxxx XX Xxxxxxxxxxx
00000 5-bn 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxx Xxxxxxxxx
00000 5-bo 0-000 Xxx Xxxx Xxx Xxxxxxxxx Xxxxxxxx
-----------------------------------------------------------------------------------
51468 5-bp 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxx
00000 5-bq 0-000 Xxx Xxxx Xxx XxXxxxxxx
00000 5-br 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxxxx
00000 5-bs 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxx
00000 5-bt 5-072 Red Roof Inn Detroit Airport Belleville
-----------------------------------------------------------------------------------
51468 5-bu 0-000 Xxx Xxxx Xxx Xxxxxxxx Xxxx
00000 5-bv 0-000 Xxx Xxxx Xxx Xxxxxxxxxxxx Xxxxxxx
00000 5-bw 0-000 Xxx Xxxx Xxx Xxxxxxx Xxxxxxxx
00000 5-bx 0-000 Xxx Xxxx Xxx Xxxxxx Xxxxxxxxx Xxxxxxx
00000 5-by 5-077 Red Roof Inn Dayton North
-----------------------------------------------------------------------------------
51468 5-bz 0-000 Xxx Xxxx Xxx Xxxxxxxxxx Xxxx
00000 5-ca 0-000 Xxx Xxxx Xxx Xxxxxx Xxxx Xxxxx Xxxxxxx
00000 8 8 0-000 Xxxxxxx Marriott
51083 10 10 00-000 Xxxx Xxxxxx Apartments
50637 14 14 AG Industrial Portfolio
-----------------------------------------------------------------------------------
50637 14-a 14-001 Sunny Delight - 00 Xxxx Xxxx
50637 14-b 14-002 Sunny Delight - 0000 Xxxxx Xxxxxx Xxxxxx
00000 00-x 00-000 Xxxxx Xxxxxxx - 0000 XxXxxxxx Blvd
52097 22 22 00-000 Xxxx Xxxxxx 30
50957 24 24 00-000 Xxxxx Xxxxx
-----------------------------------------------------------------------------------
50382 29 29 29-001 Reserve at Xxxxx Creek Walk
52098 31 31 31-001 Mesquite 30
51420 32 32 Sentinel and Blossum Business Centers
51420 32-a 32-001 Sentinel Business Center
51420 32-b 00-000 Xxxxxxx Business Center
-----------------------------------------------------------------------------------
51383 34 34 34-001 The Outpost
51503 38 38 38-001 Orchards at Dover
50469 42 42 42-001 Rite Aid - Salem
50026 43 43 43-001 Rite Aid - New Philadelphia
50467 44 44 44-001 Rite Aid Portfolio- Flatwoods
-----------------------------------------------------------------------------------
50468 45 45 45-001 Rite Aid Portfolio - New Salisbury
51633 49 49 49-001 000 Xxxxx Xxxxxxxx
50982 57 57 00-000 Xxxxxx Xxxxx
50492 58 58 00-000 Xxxxxxxxx Xxxxx - Haverhill
51322 66 66 66-001 UNH Park Court Apartment Portfolio
-----------------------------------------------------------------------------------
48482 71 71 00-000 Xxxx Xxxxx Xxxxx
00000 84 84 84-001 1261 Post Road
51448 87 87 87-001 000 Xxxxx Xxxxx Xx
00000 92 92 92-001 FedEx Xxxxxxxx
50053 95 95 95-001 Circuit City San Xxxxxx
-----------------------------------------------------------------------------------
50776 110 110 110-001 0000 Xxxxxxxxx Xxxxxx
50669 116 116 116-001 0000-0000 Xxxxxxxxxxxxx Xxxxxx
51574 130 130 000-000 Xxxxxxx Xxxxx
49916 131 131 131-001 2165 Xxxxxx Avenue
51723 132 132 132-001 2695 Mount Xxxxxx
-----------------------------------------------------------------------------------
51418 134 134 134-001 Toluca Towers
51732 146 146 ARC/GF Retail Portfolio
51732 146-a 000-000 Xxxxxxxxxxx-XxxxXxxxx - Xx. Peter's
51732 000-x 000-000 Xxxxxx Xxxxxxx - Xxxxxxxxx
00000 000-x 000-000 Xxxxxx Xxxxxxx - Xxxxxxxxxxxx
-----------------------------------------------------------------------------------
51732 146-d 146-004 Dollar General - Xxxxxxxx
SELLER
LOAN ID XXXXXXX XXXX XXXXX
------------------------------------------------------------------------------------------------------------------------
00000 Various Various Various
51254 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX
00000 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxx 000 XX Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51254 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX
00000 0000 X. Xxxx Xxxxxx Xxxxxx XX
00000 Various Various Various
51468 000 X Xxxxxxx Xx Xxxxxxx XX
00000 0000 Xxxxxxxx Xxx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00 Xxxxxxxxxxx Xxxx Xxxxxxxx XX
00000 00 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx XX
00000 0000 Xxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX
00000 0000 X Xxxx Xx Xxxxxxxxxxxxxxx XX
00000 0000 Xxxxx Xxxxxxxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00 Xxxxxxxx Xxx Xxxxxx XX
00000 0000 Xxxxx Xxxx X Xxxxxxxxx XX
00000 0000 Xxxxxxx Xxx Xxxxxxx XX
00000 0000 Xxxxx XX 000 Xxxxx XX
00000 0000 Xxxx Xxxxxx Xxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxxxxx Xxxx Xxxxxx XX
00000 00000 Xxxxxxxxx Xx Xxxxx Xxxxx XX
00000 0000 Xxxx Xxxx Xx Xxxx Xxxx XX
00000 0000 X Xxx Xx Xxxxxx XX
00000 000 Xxxx Xx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 XX 00xx Xxxxxx Xxxxxxxxxxx XX
00000 0000 Xxxxxx Xxxxxx Xx. Xxxxx XX
00000 000 Xxxxxxxxxx Xx Xxxxx Xxxxxx XX
00000 000 Xxxxx Xx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 X Xxxxxxxxx Xx Xxxxxxxxx XX
00000 00 Xxxx X-00 Xxxxxxx Xxxx Xxxxx Xxxxxx XX
00000 00 Xxxxxx Xx Xxxxx XX
00000 00 Xxxx Xxx Xxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxx 00 Xxxxxxxxx Xxxxxxxx XX
00000 0000 Xxxxxxxxxxx Xx Xxxxxxx Xxxxx XX
00000 00000 Xxxxxxxxx Xx Xxxxxx XX
00000 0000 Xxxxxxx Xx Xxxxxxxxx XX
00000 0000 X Xxxxxxxxx Xx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxxx Xxxxx Xx Xxxxxx XX
00000 0000 Xxxxxx Xxxxxx Xx Xxxxxx XX
00000 00 Xxxxx Xx Xxxxxxx XX
00000 0000 X Xxxxxxxx Xxxx Xxxxxxxx XX
00000 0000 Xxxxx Xxxxxxxxxx Xxxxxxx 00 Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxx Xxx Xxxxxxxxxxx XX
00000 0000 X Xxxxxxxx Xx Xxxxxxx XX
00000 0000 Xxxxxx Xxxxxx Xx Xxxx XX
00000 000 Xxxxxxxxxxx Xxx Xxxxxxxx XX
00000 0000 Xxxxxx Xx Xxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxxxxx Xxx Xxxxxxxx XX
00000 0000 X Xxxxxxxxx Xx Xxxxx XX
00000 0000 Xxx Xxxxx Xx Xxxxxxxx XX
00000 0000 Xxxx Xx Xxxxxxx XX
00000 0000 X Xxxxxxxxxx Xx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 000 Xxxxxxxx Xx Xxxxxxxxxxxx XX
00000 0000 X Xxxxx Xx Xxxxxxxx XX
00000 000 Xxxxxxxxx Xxx Xxxxxxxxxx XX
00000 00 Xxx Xxxx Xx Xxxxx XX
00000 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxx Xx Xxxxxxxxx Xxxxx XX
00000 0000 Xxxxx Xx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxxx Xxxxx Xxxxxxx XX
00000 000 Xxxxxxx Xx XX Xxxxxxxx XX
00000 0000 XX Xxx 00 X Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxx Xx Xxxxxxxxx XX
00000 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX
00000 00000 Xxxxxx Xx Xxxxxxxxxx Xxxxxxx XX
00000 000 Xxxxxxxx Xx Xxxxxxxxx XX
00000 00 X Xxxxxxxxx Xx Xxxxxxxxx Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxxxx Xxxx Xxxxxx XX
00000 000 X Xxxxxxx Xx Xxxxxxxxx XX
00000 0000 Xxx Xxxx Xxx Xx Xxxxxxxxxx XX
00000 000 Xxxxxx Xxxxxxx Xx Xxxxxxxxx XX
00000 00000 Xxxxxxx Xxxx Xxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 00000 Xxxxxx Xx Xxxxxx XX
00000 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx XX
00000 0000 Xxxx Xx Xxxxxx XX
00000 00000 Xxxx Xxx Xx Xxxxxxx XX
00000 00000 X X 00 Xxxxxxx Xx Xxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 000 Xxxx Xxxxxxx Xxxx Xxxxxxxx Xxxx XX
00000 00000 Xxxxxxx Xxxxxxxx Xxxx Xxxxxxxxxxxx XX
00000 00000 Xxx Xxxxx Xx X Xxxxxxxx XX
00000 00 Xxxxxx Xxxx Xxxxxxxxx XX
00000 0000 Xxxxxx Xxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51468 0000 Xxxxxxxxx Xx Xxxxxxxxxx XX
00000 0000 Xxxxxx Xxxx Xxxxxx XX
00000 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX
00000 000-000 Xxxx Xxxxxx Xxxxxxxx XX
00000 Various Various Various
------------------------------------------------------------------------------------------------------------------------
50637 00 Xxxx Xxxx Xxxxxxxxx XX
00000 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX
00000 7000 & 0000 XxXxxxxx Xxxx Xxxxxxx XX
00000 00000 Xxxxx Xxx Xxxxxxx Xxxx X. Xxxxxxx XX
00000 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
50382 00000 Xxxx Xxxx Xxxxxx XX
00000 00000 Xxxxxx X Xxxxxxx Xxx Xxxxxxxx XX
00000 Various Xxx Xxxxxxx XX
00000 10530-10732 Xxxxxxxx Xxxxx Xxx Xxxxxxx XX
00000 00000-00000 Xxxxxxxxx Xxxxx Xxx Xxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51383 0000 X Xxxxxxxxxx Xxxxx Xxxxx Xxxx XX
00000 0000 Xxxxx 00 Xxxx Xxxx Xxxxx XX
00000 0000 Xxxx Xxxxx Xxxxxx Xxxxx XX
00000 000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxxxxx XX
00000 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
50468 0000 Xxxxx Xxxxx 00 (0000 Xxxxxxx 000 XX) New Xxxxxxxxx XX
00000 000 Xxxxx Xxxxxxxx Xxxxxxx XX
00000 000 Xxxxxx Xxxxxx Xxxxxx XX
00000 000 Xxxx Xxxxxx Xxxxxxxxx XX
00000 00 Xxxx Xx. & 00-00 Xxxx Xxxxx, 42 Xxxxxxxx Avenue, 0 Xxxx Xxxxxx & 0 Xxxxxxx Xxxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
48482 0000-0000 Xxxxxxx Xxxx Xxxxxx Xxxxxxxxxx XX
00000 0000 Xxxx Xxxx Xxxxxxxxx XX
00000 000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxxx XX
00000 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx XX
00000 000 Xxxxxx Xxxxxxxxx Xxx Xxxxxx XX
------------------------------------------------------------------------------------------------------------------------
50776 0000 Xxxxxxxxx Xxxxxx Xxxxx XX
00000 0000-0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxxxxx XX
00000 0000-0000 Xxxxxxxx Xxxx Xxxx Xxxx XX
00000 0000 Xxxxxx Xxxxxx Xxxxx XX
00000 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51418 0000 Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxx XX
00000 Various Various Various
51732 0000 Xxx Xxxxxx Xxxx Xxxxx Xx. Xxxxx'x XX
00000 0000 Xxxx Xxxx Xxxxxx Xxxxxxxxx XX
00000 0000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX
------------------------------------------------------------------------------------------------------------------------
51732 0000 Xxxxx Xxxxxxx Xxxxxxxx XX
CUT-OFF MONTHLY MONTHLY FIRST INTEREST
SELLER ORIGINAL DATE DEBT DEBT SERVICE PAYMENT INTEREST ACCRUAL
LOAN ID ZIP CODE BALANCE ($) BALANCE ($) (3) SERVICE ($) (4) (5) AFTER IO ($) (4) (5) DATE RATE (4) BASIS
---------------------------------------------------------------------------------------------------------------------------
51254 Various 97,500,000 97,500,000 514,865.45 629,788.14 9/1/2007 6.2500% Actual/360
51254 75236 32,788,889 32,788,889
51254 60652 24,555,555 24,555,555
51254 21632 14,155,556 14,155,556
51254 30013 10,496,296 10,496,296
---------------------------------------------------------------------------------------------------------------------------
51254 30904 9,003,704 9,003,704
51254 61802 6,500,000 6,500,000
51468 Various 78,000,000 77,810,961 504,507.40 NAP 10/1/2007 6.7230% Actual/360
51468 60611 5,139,603 5,127,147
51468 22303 2,317,956 2,312,338
---------------------------------------------------------------------------------------------------------------------------
51468 07094 2,295,988 2,290,424
51468 19029 2,105,111 2,100,009
51468 78205 2,102,937 2,097,840
51468 22903 1,701,326 1,697,203
51468 34104 1,696,511 1,692,400
---------------------------------------------------------------------------------------------------------------------------
51468 01801 1,637,314 1,633,346
51468 19047 1,592,092 1,588,234
51468 19053 1,444,322 1,440,822
51468 33610 1,342,573 1,339,320
51468 78041 1,318,248 1,315,053
---------------------------------------------------------------------------------------------------------------------------
51468 20794 1,313,034 1,309,851
51468 70816 1,296,326 1,293,184
51468 20745 1,246,517 1,243,496
51468 85743 1,224,899 1,221,931
51468 12205 1,224,242 1,221,275
---------------------------------------------------------------------------------------------------------------------------
51468 32608 1,188,708 1,185,827
51468 63110 1,155,446 1,152,646
51468 08054 1,155,389 1,152,588
51468 14026 1,144,996 1,142,221
51468 29406 1,105,602 1,102,923
---------------------------------------------------------------------------------------------------------------------------
51468 14467 1,081,528 1,078,907
51468 36606 1,080,351 1,077,733
51468 13502 1,060,844 1,058,273
51468 06460 1,046,648 1,044,111
51468 18109 1,035,716 1,033,206
---------------------------------------------------------------------------------------------------------------------------
51468 16066 1,020,029 1,017,557
51468 60515 1,011,496 1,009,044
51468 48091 995,286 992,873
51468 40503 988,846 986,449
51468 85714 976,723 974,356
---------------------------------------------------------------------------------------------------------------------------
51468 20708 951,545 949,239
51468 20706 927,586 925,337
51468 14226 923,606 921,367
51468 13206 920,660 918,429
51468 78744 913,081 910,868
---------------------------------------------------------------------------------------------------------------------------
51468 60527 909,681 907,477
51468 27603 900,851 898,668
51468 79912 899,387 897,207
51468 21001 883,569 881,428
51468 27511 873,429 871,312
---------------------------------------------------------------------------------------------------------------------------
51468 48124 847,242 845,189
51468 44312 806,976 805,020
51468 29223 796,626 794,695
51468 14075 788,394 786,483
51468 27403 753,591 751,765
---------------------------------------------------------------------------------------------------------------------------
51468 01772 749,911 748,094
51468 61108 738,602 736,812
51468 17110 714,269 712,538
51468 03079 706,873 705,160
51468 46268 694,722 693,038
---------------------------------------------------------------------------------------------------------------------------
51468 48309 690,089 688,417
51468 43068 679,268 677,622
51468 32819 675,441 673,804
51468 30144 656,083 654,493
51468 25705 640,425 638,873
---------------------------------------------------------------------------------------------------------------------------
51468 40505 639,949 638,398
51468 46514 617,149 615,654
51468 44130 593,866 592,426
51468 37214 591,100 589,667
51468 60005 563,840 562,474
---------------------------------------------------------------------------------------------------------------------------
51468 43606 554,389 553,045
51468 61820 551,570 550,233
51468 40218 544,784 543,464
51468 25526 542,120 540,806
51468 44145 537,304 536,002
---------------------------------------------------------------------------------------------------------------------------
51468 48180 536,547 535,247
51468 70507 510,319 509,082
51468 43017 498,939 497,730
51468 77084 487,502 486,320
51468 48111 478,932 477,772
---------------------------------------------------------------------------------------------------------------------------
51468 46360 473,490 472,342
51468 32218 471,381 470,238
51468 48170 461,853 460,733
51468 02048 404,328 403,348
51468 45414 348,675 347,830
---------------------------------------------------------------------------------------------------------------------------
51468 40222 289,302 288,601
51468 75063 214,147 213,628
49393 23510 62,000,000 62,000,000 335,835.49 NAP 9/1/2007 6.4110% Actual/360
51083 11205 47,000,000 47,000,000 247,000.23 288,470.67 9/1/2007 6.2200% Actual/360
50637 Various 39,150,000 39,150,000 191,886.20 229,738.75 7/1/2007 5.8010% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50637 08810 16,443,524 16,443,524
50637 92807 14,451,958 14,451,958
50637 30336 8,254,518 8,254,518
52097 77089 26,200,000 26,098,551 196,405.92 NAP 11/1/2007 6.5690% Actual/360
50957 60632 25,200,000 25,200,000 138,502.29 159,364.01 10/1/2007 6.5050% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50382 30097 23,000,000 23,000,000 125,555.78 NAP 10/1/2007 6.4610% Actual/360
52098 75149 22,200,000 22,115,874 168,550.13 NAP 11/1/2007 6.7310% Actual/360
51420 Various 22,040,000 22,040,000 114,523.82 134,273.89 9/1/2007 6.1500% Actual/360
51420 78217 13,240,000 13,240,000
51420 78247 8,800,000 8,800,000
---------------------------------------------------------------------------------------------------------------------------
51383 76706 22,000,000 22,000,000 116,788.17 135,930.31 11/1/2007 6.2830% Actual/360
51503 08753 19,640,000 19,640,000 104,359.55 121,425.46 10/1/2007 6.2890% Actual/360
50469 44460 4,928,000 4,913,515 28,999.98 NAP 10/1/2007 5.8270% Actual/360
50026 44663 4,528,000 4,528,000 22,292.59 NAP 10/1/2007 5.8270% Actual/360
50467 41139 3,600,000 3,600,000 17,723.79 NAP 10/1/2007 5.8270% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50468 47161 2,954,000 2,954,000 14,543.36 NAP 10/1/2007 5.8270% Actual/360
51633 10701 14,250,000 14,250,000 77,874.27 89,770.01 11/1/2007 6.4680% Actual/360
50982 03076 11,000,000 11,000,000 59,295.60 68,661.67 10/1/2007 6.3800% Actual/360
50492 01830 10,900,000 10,900,000 57,715.88 67,233.74 10/1/2007 6.2670% Actual/360
51322 03824 9,000,000 9,000,000 49,358.65 56,832.86 9/1/2007 6.4910% Actual/360
---------------------------------------------------------------------------------------------------------------------------
48482 60540 8,400,000 8,400,000 40,901.29 49,089.51 12/1/2006 5.7630% Actual/360
51094 06824 7,200,000 7,200,000 36,195.83 42,936.46 10/1/2007 5.9500% Actual/360
51448 10607 7,000,000 7,000,000 38,750.83 44,484.42 10/1/2007 6.5520% Actual/360
51232 29506 6,550,000 6,550,000 34,759.96 40,461.63 10/1/2007 6.2810% Actual/360
50053 94901 6,400,000 6,400,000 31,492.74 NAP 6/1/2007 5.8240% Actual/360
---------------------------------------------------------------------------------------------------------------------------
50776 10457 5,100,000 5,100,000 27,306.31 31,690.72 9/1/2007 6.3370% Actual/360
50669 02139 4,875,000 4,875,000 25,685.61 29,971.84 8/1/2007 6.2360% Actual/360
51574 27511 4,000,000 4,000,000 21,832.41 25,177.59 10/1/2007 6.4600% Actual/360
49916 10453 3,850,000 3,840,455 24,639.25 NAP 10/1/2007 6.6200% Actual/360
51723 93306 3,724,000 3,724,000 20,341.70 23,452.56 10/1/2007 6.4650% Actual/360
---------------------------------------------------------------------------------------------------------------------------
51418 91602 3,527,000 3,527,000 18,547.45 21,656.74 8/1/2007 6.2240% Actual/360
51732 Various 3,026,000 3,026,000 16,416.51 NAP 10/1/2007 6.4210% Actual/360
51732 63304 1,290,000 1,290,000
51732 43130 590,000 590,000
51732 41051 580,000 580,000
---------------------------------------------------------------------------------------------------------------------------
51732 41042 566,000 566,000
MATURITY ARD ORIGINAL STATED REMAINING ORIGINAL REMAINING REMAINING CROSSED
SELLER DATE LOAN TERM TO MATURITY TERM TO MATURITY AMORTIZATION AMORTIZATION INTEREST ONLY WITH
LOAN ID OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.) TERM (MOS.) (4) TERM (MOS.) (4) PERIOD (MOS.) OTHER LOANS
---------------------------------------------------------------------------------------------------------------------------
51254 8/1/2017 No 120 116 316 316 316 316
51254
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51254
---------------------------------------------------------------------------------------------------------------------------
51254
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51468 9/1/2017 No 120 117 360 357 360 357
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51468
51468
49393 8/1/2012 No 60 56 0 0 0 0
51083 8/1/2014 No 84 80 360 360 360 360
50637 6/1/2017 No 120 114 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
50637
50637
50637
52097 10/1/2012 No 60 58 240 238 240 238
50957 9/1/2017 No 120 117 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
50382 3/1/2013 No 66 63 0 0 0 0
52098 10/1/2012 No 60 58 240 238 240 238
51420 8/1/2017 No 120 116 360 360 360 360
51420
51420
---------------------------------------------------------------------------------------------------------------------------
51383 10/1/2017 No 120 118 360 360 360 360
51503 9/1/2017 No 120 117 360 360 360 360
50469 9/1/2017 Yes 120 117 360 357 360 357
50026 9/1/2017 Yes 120 117 0 0 0 0
50467 9/1/2017 Yes 120 117 0 0 0 0
---------------------------------------------------------------------------------------------------------------------------
50468 9/1/2017 Yes 120 117 0 0 0 0
51633 10/1/2017 No 120 118 360 360 360 360
50982 9/1/2017 No 120 117 360 360 360 360
50492 9/1/2017 No 120 117 360 360 360 360
51322 8/1/2017 No 120 116 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
48482 11/1/2017 No 132 119 360 360 360 360
51094 9/1/2017 No 120 117 360 360 360 360
51448 9/1/2017 No 120 117 360 360 360 360
51232 9/1/2012 Yes 60 57 360 360 360 360
50053 5/1/2012 Yes 60 53 0 0 0 0
---------------------------------------------------------------------------------------------------------------------------
50776 8/1/2012 No 60 56 360 360 360 360
50669 7/1/2017 No 120 115 360 360 360 360
51574 9/1/2017 No 120 117 360 360 360 360
49916 9/1/2017 No 120 117 360 357 360 357
51723 9/1/2017 No 120 117 360 360 360 360
---------------------------------------------------------------------------------------------------------------------------
51418 7/1/2017 No 120 115 360 360 360 360
51732 9/1/2017 Yes 120 117 0 0 0 0
51732
51732
51732
---------------------------------------------------------------------------------------------------------------------------
51732
PREPAYMENT MORTGAGE
SELLER PROVISIONS OWNERSHIP LOAN ADMINISTRATIVE PAYMENT
LOAN ID (# OF PAYMENTS) (8) INTEREST SELLER (2) FEE RATE DATE
----------------------------------------------------------------------------------------------------------------------
51254 GRTR3% or YM(23)/GRTR1% or YM(96)/Open(1) Fee BSCMI 0.03148% 1st
51254 Fee BSCMI
51254 Fee BSCMI
51254 Fee BSCMI
51254 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51254 Fee BSCMI
51254 Fee BSCMI
51468 LO(27)/Flex(89)/Open(4) Fee/Leasehold BSCMI 0.03148% 1st
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Xxxxxxxxx XXXXX
00000 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
51468 Fee BSCMI
51468 Xxxxxxxxx XXXXX
00000 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51468 Fee BSCMI
51468 Fee BSCMI
49393 LO(28)/Defeasance(30)/Open(2) Leasehold BSCMI 0.05148% 1st
51083 LO(28)/GRTR1% or YM(55)/Open(1) Xxx XXXXX 0.00000% 0xx
00000 XXXX0% or YM(119)/Open(1) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50637 Fee BSCMI
50637 Fee BSCMI
50637 Fee BSCMI
52097 LO(26)/Defeasance(32)/Open(2) Fee BSCMI 0.03148% 1st
50957 LO(27)/Defeasance(92)/Open(1) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50382 LO(27)/Defeasance(36)/Open(3) Fee BSCMI 0.03148% 1st
52098 LO(26)/Defeasance(32)/Open(2) Fee BSCMI 0.03148% 1st
51420 LO(28)/Defeasance(91)/Open(1) Fee BSCMI 0.03148% 1st
51420 Fee BSCMI
51420 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51383 LO(26)/Defeasance(93)/Open(1) Fee BSCMI 0.03148% 1st
51503 LO(27)/Defeasance(92)/Open(1) Xxx XXXXX 0.00000% 0xx
00000 XXXX0% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
50026 GRTR3% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
50467 GRTR3% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50468 GRTR3% or YM(27)/GRTR3% or YM or Def(20)/Flex(69)/Open(4) Fee BSCMI 0.03148% 1st
51633 LO(26)/Defeasance(93)/Open(1) Xxx XXXXX 0.00000% 0xx
00000 XXXX0% or YM(25)/GRTR1% or YM(94)/Open(1) Fee BSCMI 0.03148% 1st
50492 LO(27)/Defeasance(92)/Open(1) Fee/Leasehold BSCMI 0.07148% 1st
51322 LO(28)/Defeasance(91)/Open(1) Fee BSCMI 0.07148% 1st
----------------------------------------------------------------------------------------------------------------------
48482 LO(48)/GRTR1% or YM(83)/Open(1) Fee BSCMI 0.07148% 1st
51094 LO(27)/Defeasance(92)/Open(1) Fee BSCMI 0.03148% 1st
51448 LO(27)/GRTR1% or YM(90)/Open(3) Fee BSCMI 0.03148% 1st
51232 LO(27)/Defeasance(32)/Open(1) Fee BSCMI 0.03148% 1st
50053 LO(31)/Defeasance(27)/Open(2) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
50776 GRTR2% or YM(59)/Open(1) Fee BSCMI 0.03148% 1st
50669 LO(29)/Defeasance(90)/Open(1) Fee BSCMI 0.07148% 1st
51574 LO(27)/Defeasance(91)/Open(2) Fee BSCMI 0.03148% 1st
49916 LO(27)/GRTR1% or YM(89)/Open(4) Fee BSCMI 0.03148% 1st
51723 LO(27)/Defeasance(92)/Open(1) Fee BSCMI 0.03148% 1st
----------------------------------------------------------------------------------------------------------------------
51418 LO(29)/Defeasance(87)/Open(4) Fee BSCMI 0.04148% 1st
51732 GRTR3% or YM(24)/GRTR1% or YM(3)/Flex(89)/Open(4) Fee/Leasehold BSCMI 0.03148% 1st
51732 Leasehold BSCMI
51732 Fee BSCMI
51732 Fee BSCMI
----------------------------------------------------------------------------------------------------------------------
51732 Fee BSCMI
SELLER PAYMENT GRACE PERIOD LETTER OF
LOAN ID EVENT OF LATE FEE (DAYS) CREDIT BORROWER
------------------------------------------------------------------------------------------------------------------------------------
51254 0 SCC Distribution Centers LLC
51254
51254
51254
51254
------------------------------------------------------------------------------------------------------------------------------------
51254
51254
51468 0 R-Roof I, LLC, R-Roof II, LLC, and R-Roof III, LLC
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
49393 0 IProcNorfolk, LLC
51083 0 The Chocolate Factory, LLC
50637 0 AGNL Beverages, L.L.C.
------------------------------------------------------------------------------------------------------------------------------------
50637
50637
50637
52097 5 EPT Gulf Pointe, Inc.
50957 5 Yards Plaza, LLC
------------------------------------------------------------------------------------------------------------------------------------
50382 0 Xxxxx Creek Realty Partners, LLC
52098 5 EPT Mesquite, Inc.
51420 5 Blossom Sentinel Investors, LLC
51420
51420
------------------------------------------------------------------------------------------------------------------------------------
51383 0 Outpost Apartments, LLC; Outpost Apartments Property 1, LLC;
Outpost Apartments Property 2, LLC; Outpost Apartments
Property 3, LLC; Outpost Apartments Property 4, LLC;
Outpost Apartments Property 5, LLC; Outpost Apartments
Property 6, LLC; Outpost Apartments Property 7, LLC;
Outpost Apartments Property 8, LLC; Outpost Apartments
Property 10, LLC; Outpost Apartments Property 11, LLC;
Outpost Apartments Property 13, LLC; Outpost Apartments
Property 14, LLC; Outpost Apartments Property 15, LLC;
Outpost Apartments Property 16, LLC; Outpost Apartments
Property 17, LLC; Outpost Apartments Property 18, LLC;
Outpost Apartments Property 19, LLC; Outpost Apartments
Property 20, ELC and Outpost Apartments Property 22, LLC
51503 0 The Orchards at Dover, L.L.C.
50469 5 ARC RASLMOH001, LLC
50026 5 ARC Ranphoh001, LLC
50467 5 ARC RAFWKY0001, LLC
------------------------------------------------------------------------------------------------------------------------------------
50468 5 ARC Ransin0001, LLC
51633 0 984 Associates, LLC
50982 5 Pelham Realty Group LLC
50492 5 Monument Square Company, LLC
51322 5 Varsity Durham II, LLC
------------------------------------------------------------------------------------------------------------------------------------
48482 5 Standex LOC ($400,000) Nare High Grove, LLC
51094 5 0000 Xxxx Xxxx Associates LLC
51448 5 280 DFR, LLC
51232 5 Xxxxxxxx Federal Mezzanine LLC & Middleboro Federal
Mezzanine I, LLC
50053 5 Simvest Real Estate II LLC
------------------------------------------------------------------------------------------------------------------------------------
50776 5 2085 Valentine LLC
50669 5 1718-1730 Mass. Ave. LLC
51574 5 Roof Repair Reserve LOC ($142,500) Hemlock Plaza Limited Partnership
49916 5 Tuck-It-Away Associates-Xxxxxx, LLC
51723 5 Golden State Properties LLC (a/k/a Bakersfield Golden State
Properties LLC) and Bryloo Investments LLC
------------------------------------------------------------------------------------------------------------------------------------
51418 5 4038 Xxxxxx, LLC
51732 0 XXX XXXXXXX000, XXX, XXX XXXXXX0000, LLC, ARC DGLANOH001,
LLC, ARC BSSPMO0001, LLC
51732
51732
51732
------------------------------------------------------------------------------------------------------------------------------------
51732
NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE LOAN
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE
------------------------------------------------------------------------------------------------------------------------------------
51254 Xxxxx Fargo Bank, National Association 0.305000% 1
51254
51254
51254
51254
------------------------------------------------------------------------------------------------------------------------------------
51254
51254
51468 Xxxxx Fargo Bank, National Association 0.305000% 1 The BSCMSI 2007-PWR17 Master Servicer is required to
make remittances of payments received on the RRI
Hotel Portfolio Pooled Mortgage Loan on the first
business day following its receipt of those
payments. The master servicing fee and other
scheduled administrative fees payable under the
applicable Non-Trust Servicing Agreement are
calculated at an aggregate rate of 0.01% per annum
on an Actual/360 Basis.
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
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51468
51468
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51468
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51468
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51468
51468
51468
51468
51468
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51468
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51468
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51468
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51468
51468
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51468
51468
51468
51468
51468
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51468
51468
51468
51468
51468
------------------------------------------------------------------------------------------------------------------------------------
51468
51468
49393 Xxxxx Fargo Bank, National Association 0.505000% 1
51083 Xxxxx Fargo Bank, National Association 0.305000% 2
50637 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50637
50637
50637
52097 Xxxxx Fargo Bank, National Association 0.305000% 1
50957 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50382 Xxxxx Fargo Bank, National Association 0.305000% 2
52098 Xxxxx Fargo Bank, National Association 0.305000% 1
51420 Xxxxx Fargo Bank, National Association 0.305000% 1
51420
51420
------------------------------------------------------------------------------------------------------------------------------------
51383 Xxxxx Fargo Bank, National Association 0.305000% 2
51503 Xxxxx Fargo Bank, National Association 0.305000% 1
50469 Xxxxx Fargo Bank, National Association 0.305000% 1
50026 Xxxxx Fargo Bank, National Association 0.305000% 1
50467 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50468 Xxxxx Fargo Bank, National Association 0.305000% 1
51633 Xxxxx Fargo Bank, National Association 0.305000% 1
50982 Xxxxx Fargo Bank, National Association 0.305000% 1
50492 Xxxxx Fargo Bank, National Association 0.705000% 1
51322 Xxxxx Fargo Bank, National Association 0.705000% 2
------------------------------------------------------------------------------------------------------------------------------------
48482 Xxxxx Fargo Bank, National Association 0.705000% 1
51094 Xxxxx Fargo Bank, National Association 0.305000% 1
51448 Xxxxx Fargo Bank, National Association 0.305000% 1
51232 Xxxxx Fargo Bank, National Association 0.305000% 1
50053 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
50776 Xxxxx Fargo Bank, National Association 0.305000% 2
50669 Xxxxx Fargo Bank, National Association 0.705000% 1
51574 Xxxxx Fargo Bank, National Association 0.305000% 1
49916 Xxxxx Fargo Bank, National Association 0.305000% 1
51723 Xxxxx Fargo Bank, National Association 0.305000% 1
------------------------------------------------------------------------------------------------------------------------------------
51418 Xxxxx Fargo Bank, National Association 0.405000% 2
51732 Xxxxx Fargo Bank, National Association 0.305000% 1
51732
51732
51732
------------------------------------------------------------------------------------------------------------------------------------
51732
NON-TRUST-SERVICED
SELLER POOLED MORTGAGE
LOAN ID LOAN ACCRUAL
-----------------------------
51254
51254
51254
51254
51254
-----------------------------
51254
51254
51468 Actual/360 Basis
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
51468
51468
51468
-----------------------------
51468
51468
49393
51083
50637
-----------------------------
50637
50637
50637
52097
50957
-----------------------------
50382
52098
51420
51420
51420
-----------------------------
51383
51503
50469
50026
50467
-----------------------------
50468
51633
50982
50492
51322
-----------------------------
48482
51094
51448
51232
50053
-----------------------------
50776
50669
51574
49916
51723
-----------------------------
51418
51732
51732
51732
51732
-----------------------------
51732
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 corporation duly organized, validly
existing and in good standing under the laws of the State of New York.
(b) The Mortgage Loan Seller's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the Mortgage Loan
Seller's organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material instrument to
which it is a party or by which it is bound, which default or breach, in the
good faith and reasonable judgment of the Mortgage Loan Seller, is likely to
affect materially and adversely the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(c) The Mortgage Loan Seller has the full power and authority to
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and delivery
by the other party or parties hereto, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(e) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Mortgage Loan Seller's good
faith and reasonable judgment, is likely to affect materially and adversely the
ability of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(f) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation by
the Mortgage Loan Seller of the transactions contemplated herein, except for (A)
those consents, approvals, authorizations or orders that previously have been
obtained and (B) those filings and recordings of Mortgage Loan Documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
(g) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Mortgage Loan Seller's
knowledge, threatened against the Mortgage Loan Seller that, if determined
adversely to the Mortgage Loan Seller, would prohibit
Ex. B-1-1
the Mortgage Loan Seller from entering into this Agreement or that, in the
Mortgage Loan Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
(i) The Mortgage Loan Seller is not transferring the Mortgage Loans to
the Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(j) The Mortgage Loan Seller will be solvent at all relevant times
prior to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Mortgage Loan Seller's assets,
either taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Mortgage Loan Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Mortgage Loan Seller,
and the Mortgage Loan Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business.
(l) The Mortgage Loan Seller does not intend to, and does not believe
that it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(m) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Mortgage Loan Seller are pending or contemplated.
(n) The principal place of business and chief executive office of the
Mortgage Loan Seller is located in the State of New York.
(o) The consideration received by the Mortgage Loan Seller upon the
sale of the Mortgage Loans constitutes at least fair consideration and
reasonably equivalent value for such Mortgage Loans.
Ex. B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Purchaser's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Purchaser's organizational
documents or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party or by
which it is bound, which default or breach, in the good faith and reasonable
judgment of the Purchaser, is likely to affect materially and adversely the
ability of the Purchaser to perform its obligations under this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the other party or parties hereto, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(d) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Purchaser's knowledge,
threatened against the Purchaser that, if determined adversely to the Purchaser,
would prohibit the Purchaser from entering into this Agreement or that, in the
Purchaser's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Purchaser to perform its obligations under
this Agreement.
(e) The Purchaser has the full power and authority to consummate all
transactions contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and delivered
this Agreement.
(f) The Purchaser is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely the ability of
the Purchaser to perform its obligations under this Agreement.
Ex. B-2-1
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Ex. C-1
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE MORTGAGE LOAN
SELLER'S KNOWLEDGE" AND OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN,
EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE
OF THE MORTGAGE LOAN SELLER, ITS OFFICERS AND EMPLOYEES RESPONSIBLE FOR THE
UNDERWRITING, ORIGINATION, SERVICING OR SALE OF THE MORTGAGE LOANS REGARDING THE
MATTERS EXPRESSLY SET FORTH BELOW IN EACH CASE WITHOUT HAVING CONDUCTED ANY
INDEPENDENT INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO
(EXCEPT (I) HAVING SENT TO THE SERVICERS SERVICING THE MORTGAGE LOANS ON BEHALF
OF THE MORTGAGE LOAN SELLER, IF ANY, SPECIFIC INQUIRIES REGARDING THE MATTERS
REFERRED TO AND (II) AS EXPRESSLY SET FORTH HEREIN). ALL INFORMATION CONTAINED
IN DOCUMENTS WHICH ARE PART OF OR REQUIRED TO BE PART OF A MORTGAGE FILE, AS
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (TO THE EXTENT SUCH DOCUMENTS
EXIST) SHALL BE DEEMED WITHIN THE MORTGAGE LOAN SELLER'S KNOWLEDGE.
The Mortgage Loan Seller hereby represents and warrants that, as of
the date herein below specified or, if no such date is specified, as of the
Closing Date, except with respect to the Exceptions described on Schedule C to
this Agreement and subject to Section 17 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this
Agreement.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan. The Mortgage
Loan Seller has full right, power and authority to transfer and assign each
Mortgage Loan to or at the direction of the Purchaser free and clear of any and
all pledges, liens, charges, security interests, participation interests and/or
other interests and encumbrances. Upon consummation of transactions contemplated
by this Agreement, the Mortgage Loan Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Mortgage Loan Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, the Mortgage Loan is not,
and in the prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months), has not been, 30 days or
more past due in respect of any Monthly Payment without giving effect to any
applicable grace period. If the Mortgage Loan Seller was the originator of the
Mortgage Loan, the Mortgage Loan has not been 60 days or more past due in
respect of any Monthly Payment (without
1
giving effect to any applicable grace period) at any time since the date of
origination. If the Mortgage Loan Seller was not the originator of the Mortgage
Loan, the Mortgage Loan has not, to the Mortgage Loan Seller's knowledge, been
60 days or more past due in respect of any Monthly Payment (without giving
effect to any applicable grace period) at any time since the date of
origination.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy, a preliminary title policy with escrow instructions, or a
"marked-up" commitment, in each case binding upon the title insurer), none of
which (individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer), none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(d) other matters to which like properties are commonly subject, none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (e) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property which the Mortgage Loan
Seller did not require to be subordinated to the lien of such Mortgage and which
do not (individually or in the aggregate) materially interfere with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (f) condominium declarations of record and identified in such lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer) and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (g) being herein referred to as the
"Permitted Encumbrances"). Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments and UCC Financing
Statements, establishes and creates a valid and, subject to the exceptions
2
set forth in Paragraph 13 below, enforceable security interest in favor of the
holder thereof in all items of personal property owned by the related Borrower
which are material to the conduct in the ordinary course of the Borrower's
business on the related Mortgaged Property. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller), unless the
related Mortgage has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, in which case no such
assignment has been executed. Such assignment of Mortgage (if any) constitutes a
legal, valid, binding and, subject to the exceptions set forth in Paragraph 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, to be included in
the related Mortgage File as otherwise contemplated by this Agreement, an
Assignment of Leases, either as a separate instrument or as part of the
Mortgage, related to and delivered in connection with each Mortgage Loan that
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in Paragraph 13 below, enforceable assignment of or first priority lien on
and security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Mortgage Loan Seller) unless the related Mortgage has been recorded in the name
of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, in
which case no such assignment has been executed. Such assignment of Assignment
of Leases (if any) constitutes a legal, valid, binding and, subject to the
exceptions set forth in Paragraph 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. If an Assignment
of Leases exists with respect to any Mortgage Loan (whether as part of the
related Mortgage or separately), then the related Mortgage or related Assignment
of Leases, subject to applicable law, provides for, upon an event of default
under the Mortgage Loan, the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or for rents to be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part, in each such
event in a manner which would materially interfere with the benefits of the
security intended to be provided by such Mortgage.
3
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by a third party
engineering consultant and included in the Servicing File and which has been the
delivered to the initial Controlling Class Representative, the related Mortgaged
Property is, to the Mortgage Loan Seller's knowledge, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan (except in any such case where: (1) an escrow of funds or
insurance coverage or a letter of credit exists in an amount reasonably
estimated to be sufficient to effect the necessary repairs and maintenance; or
(2) such repairs and maintenance have been completed; or (3) such repairs and
maintenance are required to be completed and the amount reasonably estimated to
be sufficient to effect the necessary repairs and maintenance does not exceed 5%
of the original principal balance of the related Mortgage Loan). None of the
engineering reports referred to in the first sentence of this Paragraph 7 was
prepared more than 18 months prior to the Closing Date. As of the date hereof,
the Mortgage Loan Seller has no knowledge of any proceeding pending or written
notice of any proceeding threatened for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Mortgage
Loan Seller's knowledge (based solely on surveys (if any) and/or the lender's
title policy (or, if such policy is not yet issued, a pro forma title policy, a
preliminary title policy with escrow instructions or a "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan, (a) all of the improvements on
the related Mortgaged Property considered material in determining the appraised
value of the Mortgaged Property at origination lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current principal
use of such Mortgaged Property, and (b) no improvements on adjoining properties
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association lender's title insurance policy
or a comparable form of lender's title insurance policy approved for use in the
applicable jurisdiction (the "Title Policy") (or, if such policy is yet to be
issued, by a pro forma policy, a preliminary title policy with escrow
instructions or a "marked up" commitment binding on the title insurer) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to any Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Mortgage Loan Seller's knowledge, no material claims have been made thereunder
and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor
to the Mortgage Loan Seller's knowledge, any other holder of the Mortgage Loan
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee
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(including endorsement and delivery of the related Mortgage Note to the
Purchaser and recording of the related Assignment of Mortgage in favor of
Purchaser in the applicable real estate records), such Title Policy (or, if it
has yet to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. Such
Title Policy contains no exclusion for, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available), the following: (a) access to a public road; and (b)
that if a survey was reviewed or prepared in connection with the origination of
the related Mortgage Loan, the area shown on such survey is the same as the
property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Mortgage Loan Seller, the
Purchaser or any transferee thereof except in connection with a trustee's sale
after default by the related Borrower or such customary fee, as may be payable,
in connection with any full or partial release of the related Mortgaged Property
or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgage
Loans identified on Schedule C to this Agreement as Property Condition or
Engineering Report Loans, where the environmental assessment with respect to
lead based paint, asbestos containing materials, and radon gas was included in
the Property Condition or Engineering Report, with respect to each Mortgaged
Property (a) an environmental site assessment or an environmental site
assessment update (each, an "Environmental Assessment") was performed by an
independent third party environmental consultant with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) a report of each such Environmental Assessment or, in the
case of a Property Condition or Engineering Report Loan, the applicable Property
Condition or Engineering Report, if any (each, an "Environmental Report"), is
dated no earlier than twelve (12) months prior to the Closing Date and has
5
been delivered to the Purchaser, and (c) either (i) no such Environmental
Report, if any, provides that as of the date of the report there is a material
violation of applicable environmental laws with respect to any known
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property and the same has not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) a party or parties not related to the related Borrower
was identified as a responsible party for such condition or circumstance, (B)
the related Borrower was required to provide additional security in an amount
reasonably estimated by the Mortgage Loan Seller to be adequate to cure the
violations and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Mortgage Loan Seller in its reasonable business judgment, that
applicable federal, state or local governmental authorities had no current
intention of taking any action, and are not requiring any action, in respect of
such condition or circumstance, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
by the Mortgage Loan Seller to be sufficient for purposes of effecting such
remediation, (G) the related Borrower or other responsible party is currently
taking such actions, if any, with respect to such circumstances or conditions as
have been required by the applicable governmental regulatory authority or
recommended by the environmental site assessment, (H) the related Mortgaged
Property is insured under a policy of insurance, subject to certain per
occurrence and aggregate limits and a deductible, against certain losses arising
from such circumstances and conditions or (I) a responsible party provided a
guaranty or indemnity to the related Borrower and/or the mortgagee to cover the
costs of any required investigation, testing, monitoring or remediation and, as
of the date of origination of the related Mortgage Loan, such responsible party
had, in the Mortgage Loan Seller's sole discretion, an appropriate net worth, or
the financial ability to pay or perform all of its obligations under such
guaranty or indemnity, in light of such material violation of applicable
environmental laws with respect to such known circumstances or conditions
relating to the related Mortgaged Property. To the Mortgage Loan Seller's
knowledge, there are no significant or material circumstances or conditions with
respect to such Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Borrower questionnaire delivered to Mortgage
Loan Seller in connection with the issuance of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. For the Mortgaged Properties
identified on Schedule C (Representation 12) to this Agreement, the Mortgage
Loan Seller required the related Borrower to deliver, or the Mortgage Loan
Seller itself obtained, a secured creditor impaired property insurance policy
naming the Mortgage Loan Seller and its successors and/or assigns as a loss
payee (a "Secured Creditor Policy") or a pollution legal liability policy naming
the Mortgage Loan Seller and its
6
successors and/or assigns as an additional insured (a "PLL Policy"; a Secured
Creditor Policy or a PLL Policy, an "Environmental Policy") (provided that a
Mortgaged Property will not be identified on Schedule C (Representation 12) to
this Agreement unless the applicable Environmental Policy was obtained to
specifically address an environmental concern or in lieu of obtaining a Phase I
environmental assessment or conducting additional environmental testing); such
Environmental Policy has been issued by an insurer with a claims paying ability
rating or a financial strength rating, as applicable, of no less than "AA" by
each of S&P and Fitch; such Environmental Policy is in full force and effect and
all premiums required to be paid in connection with the issuance of such
Environmental Policy have been so paid; and either such Environmental Policy, by
its terms, inures to the benefit of the holder of the related Mortgage Loan or,
subject to the Seller's compliance with this Agreement, such Environmental
Policy will be assigned to the Trustee within a reasonable period of time
following the Closing Date. All Environmental Reports that were in the
possession of the Mortgage Loan Seller and that relate to a Mortgaged Property
identified on Schedule C (Representation 12) to this Agreement have been
delivered to or disclosed to the environmental insurance carrier issuing the
related Environmental Policy prior to the issuance of such Environmental Policy.
Each Environmental Policy covering a Mortgaged Property identified on Schedule C
(Representation 12) to this Agreement that constitutes a Secured Creditor Policy
is in an amount either (1) at least equal to 125% of the outstanding principal
balance of the related Mortgage Loan or (2) equal to the lesser of cleanup costs
and the outstanding principal balance of the related Mortgage Loan and, in
either case, such policy has a term ending no sooner than the date which is five
years after the Stated Maturity Date (or, in the case of an ARD Loan, the
Anticipated Repayment Date) of the Mortgage Loan to which it relates and either
(x) does not provide for a deductible or (y) provides for a deductible and the
amount of that deductible is held in escrow. Each Environmental Policy covering
a Mortgaged Property identified on Schedule C (Representation 12) to this
Agreement that constitutes a PLL Policy (1) has a term that is co-terminous with
the Stated Maturity Date (or, in the case of an ARD Loan, the Anticipated
Repayment Date) of the related Mortgage Loan, (2) provides for a deductible in
an amount reasonably acceptable to the Mortgage Loan Seller and (3) is in an
amount reasonably acceptable to the Mortgage Loan Seller. The Mortgage for each
Mortgage Loan encumbering the related Mortgaged Property or other related loan
documents require the related Borrower to comply with all applicable federal,
state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent
transfer, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
except that certain provisions in such loan documents may be further limited or
rendered unenforceable by applicable law, but (subject to the limitations set
forth in
7
the foregoing clauses (i) and (ii)) such limitations or unenforceability will
not render such loan documents invalid as a whole or substantially interfere
with the mortgagee's realization of the principal benefits and/or security
provided thereby. Except as set forth in the immediately preceding sentence,
there was no valid offset, defense, counter claim or right of rescission
available to the related Borrower with respect to any of the related Mortgage
Notes, Mortgages or other loan documents, including, without limitation, any
such valid offset, defense, counter claim or right based on intentional fraud by
Mortgage Loan Seller in connection with the origination of the Mortgage Loan,
that would deny the mortgagee the principal benefits intended to be provided by
the Mortgage Note, Mortgage or other loan documents.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least twelve (12) months
(18 months for Mortgage Loans above $35 million) (or a specified dollar amount
which, in the reasonable judgment of the Mortgage Loan Seller, will cover no
less than twelve (12) months (18 months for Mortgage Loans above $35 million) of
rental income). Set forth on Schedule C (Representation 14) to this Agreement is
a list of those Mortgaged Properties as to which a tenant having a net worth of
at least $50,000,000 or an investment grade rating provided self-insurance, as
contemplated by the second preceding sentence, as of the date of origination of
the subject Mortgage Loan. All such hazard insurance policies described above
contain a standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee as an additional insured in
the case of liability insurance policies or as a loss payee in the case of
property insurance policies, and are not terminable (nor may the amount of
coverage provided thereunder be reduced) without prior written notice to the
mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Except under circumstances that
would be reasonably acceptable to a prudent commercial mortgage lender, the
Mortgage for each Mortgage Loan provides that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage may entitle the related Borrower to any portion of such proceeds
remaining after the repair or restoration of the related Mortgaged Property or
payment of amounts due under the Mortgage Loan; and provided, further, that, if
the related Borrower holds a leasehold interest in the related Mortgaged
Property, the application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph 18 below). Each Mortgage requires
that the Borrower or a tenant of the Borrower maintain insurance
8
as described above or permits the mortgagee to require insurance or
self-insurance as described above, and permits the mortgagee to purchase such
insurance at the Borrower's expense if Borrower fails to do so or provides that
the mortgagee has the general right to cure defaults of the Borrower. Each
Mortgaged Property is also covered by comprehensive general liability insurance
in an amount at least equal to $1 million. If any material part of the
improvements, exclusive of a parking lot, located on a Mortgaged Property is in
an area identified in the Federal Register by the Federal Emergency Management
Agency as having special flood hazards, the related Borrower is required to
maintain flood insurance in respect thereof to the extent such flood insurance
is available.
15. Taxes and Assessments. To the Mortgage Loan Seller's knowledge,
there are no delinquent property taxes or assessments or other outstanding
charges affecting any Mortgaged Property securing a Mortgage Loan that are a
lien of priority equal to or higher than the lien of the related Mortgage, or if
there are such delinquent charges or taxes, or if the appropriate amount of such
taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes
or charges are covered by an escrow of funds or other security sufficient to pay
such tax or charge. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Mortgage Loan Seller's knowledge, no
Borrower under a Mortgage Loan is a debtor in any state or federal bankruptcy,
insolvency or similar proceeding. To the Mortgage Loan Seller's knowledge, as of
the origination of the Mortgage Loan, none of (x) the nonrecourse carveout
guarantors or nonrecourse carveout indemnitors under the Mortgage Loan, (y) any
tenant with respect to more than 75% of the net rentable area at the related
Mortgaged Property that is an Affiliate of the Borrower or (z) the sole tenant
at the Mortgaged Property (in the case of this clause (z), if substantially all
of the Mortgaged Property is leased to a single tenant and the tenant was the
owner of the Mortgaged Property immediately prior to the origination of the
Mortgage Loan) was a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Mortgage Loan Seller's knowledge,
based upon any of a letter from governmental authorities, a legal opinion, an
architect's letter, a zoning consultant's report, an endorsement to the related
title policy, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located (including, without limitation, when commercially
reasonable, a representation of the related Borrower at the time of origination
of the subject Mortgage Loan), the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect (i) the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan; or (ii) the principal use of the
Mortgaged Property as of the date of the origination of such Mortgage Loan). As
of the date of origination, with respect to each
9
legal non-conforming use or structure, the originator determined (based on
either (x) any of a review of the applicable zoning law, a letter from a
governmental authority, a legal opinion, an architect's letter, a zoning
consultant's report, an endorsement to the related title policy or a combination
of the foregoing or (y) due diligence considered reasonable by prudent
commercial mortgage lenders in the lending area where the subject Mortgaged
Property is located) that if a casualty occurred at that time, the Mortgaged
Property could have been restored or repaired to such an extent that the use or
structure of the restored or repaired property would be substantially the same
use or structure, or law and ordinance insurance has been obtained, or a
holdback has been established and the Borrower is required to take steps
necessary to cause the Mortgaged Property to become a conforming use or
structure.
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted
for recording; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been no
material change in the terms of such Ground Lease since its recordation,
with the exception of material changes reflected in written instruments
which are a part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to,
and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it either has been obtained or cannot be unreasonably withheld;
provided that such Ground Lease has not been terminated and all amounts
owed thereunder have been paid). If required by such Ground Lease, the
lessor has received notice of the lien of the related Mortgage in
accordance with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of
the Mortgage Loan notice and the holder of such Mortgage Loan is permitted
a reasonable time to cure any default or breach by the lessee thereunder,
including such time as is necessary to gain possession of the Mortgaged
Property, by foreclosure or otherwise, if possession is necessary to
effect such cure, before the lessor thereunder may terminate such Ground
Lease;
10
(e) In connection with the origination of such Mortgage Loan, the
related ground lessor provided an estoppel to the originator confirming
that the related Borrower was not then in default under such Ground Lease;
such Ground Lease provides that no notice of termination given under such
Ground Lease is effective against the mortgagee under such Mortgage Loan
unless a copy has been delivered to the mortgagee; the Mortgage Loan
Seller has not received any written notice of default under or termination
of such Ground Lease; to the Mortgage Loan Seller's knowledge, there is no
material default under such Ground Lease and no condition that, but for
the passage of time or giving of notice, would result in a material
default under the terms of such Ground Lease; and, to the Mortgage Loan
Seller's knowledge, such Ground Lease is in full force and effect as of
the Closing Date;
(f) Such Ground Lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the mortgagee if it takes
possession of such leasehold interest) that extends not less than 20 years
beyond the stated maturity of the related Mortgage Loan, or 10 years if
such Mortgage Loan fully or substantially amortizes by the stated
maturity;
(g) Such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease as a result
of a rejection of such Ground Lease in a bankruptcy proceeding involving
the related Borrower, unless the mortgagee under such Mortgage Loan fails
to cure a curable default of the lessee under such Ground Lease following
notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect to
the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses (except in
such cases where a provision entitling another party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (ii) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender on a similar mortgaged property in the lending
area where the Mortgaged Property is located at the time of the
origination of such Mortgage Loan; and
(j) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors
11
or assigns, provided that such mortgagee has provided the ground lessor
with notice of its lien in accordance with the terms of such Ground Lease.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Mortgage Loan Seller nor, to the Mortgage Loan Seller's knowledge, any prior
holder of such Mortgage Loan has advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property (other than amounts paid by the tenant as
specifically provided under a related lease), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
Monthly Payment.
22. Legal Proceedings. To the Mortgage Loan Seller's knowledge,
there are no pending actions, suits, governmental investigations or proceedings
by or before any court or governmental authority against or affecting the
Borrower under any Mortgage Loan or the related Mortgaged Property that, if
determined adversely to such Borrower or Mortgaged Property, would materially
and adversely affect the value of the Mortgaged Property, the principal benefit
of the security intended to be provided by the Mortgage Loan Documents, the
current ability of the Mortgaged Property to generate net cash flow sufficient
to service such Mortgage Loan, or the current principal use of the Mortgaged
Property.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
other underwriting criteria specified therein. To the Mortgage Loan Seller's
knowledge, except for cases involving Cross-Collateralized Mortgage Loans, none
of the Mortgaged Properties securing the
12
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. Each of the related Mortgage
Loan Documents requires the Borrower to pay all reasonable costs and expenses
related to obtaining consent to an encumbrance.
24. No Mechanics' Liens. As of the date of origination and, to the
Mortgage Loan Seller's knowledge, as of the Closing Date, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
is free and clear of any and all mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance; and, to the Mortgage Loan Seller's
knowledge, no rights are outstanding that under law could give rise to any such
lien that would be prior or equal to the lien of the related Mortgage and that
is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Mortgage Loan Seller's knowledge,
as of the date of origination of each Mortgage Loan, and based on any of: (i) a
letter from governmental authorities, (ii) a legal opinion, (iii) an endorsement
to the related Title Policy, (iv) a representation of the related borrower at
the time of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then operated or such
material licenses, permits and franchises have otherwise been issued, and, as of
the Cut-Off Date, the Mortgage Loan Seller has no written notice that the
related Borrower was not in possession of such licenses, permits and franchises
or that such licenses, permits and franchises have not otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
U.S. "government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Cross-Collateralized Mortgage Loans
and the other individual Mortgage Loans secured by multiple parcels may require
the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (i) the satisfaction of certain legal and underwriting requirements, (ii)
the payment of a release price and, if so provided in the related Mortgage Loan
Documents, prepayment consideration in connection therewith or (iii) the
13
substitution of real property collateral; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Mortgage Loan Seller did not give any material
value in underwriting the Mortgage Loan. With respect to any full or partial
release or substitution of collateral, as contemplated by the provisos to the
immediately preceding sentence, either: (a) such release or substitution of
collateral (i) would not constitute a "significant modification" of the subject
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2)
and (ii) would not cause the subject Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3)(A) of the Code; or (b) the
mortgagee or servicer can, in accordance with the related Mortgage Loan
Documents, condition such release or substitution of collateral on the related
Borrower's delivery of an opinion of tax counsel to the effect specified in the
immediately preceding clause (a).
29. Defeasance. If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan either (A) (1) permits
defeasance no earlier than two years after the Closing Date, (2) permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i), in an
amount sufficient to make all scheduled payments under the Mortgage Note and (3)
has been transferred by the Mortgage Loan Seller with the intent that the
defeasance provision not be utilized (x) for any reason other than to facilitate
the disposition of the Mortgaged Property or any other customary commercial
transaction or (y) as a part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages or (B) requires that a legal
opinion or opinions be delivered with respect to the defeasance that states
subject to customary assumptions and qualifications that the holder of the such
Mortgage Loan has a first priority perfected security interest in the defeasance
collateral and that the defeasance will not cause the Trust to fail to qualify
as a REMIC as defined in the REMIC Provisions (the "Legal Opinion"). The related
Mortgage Loan Documents enable the lender to charge the Borrower for the
expenses associated with permitting a defeasance and provide for the following
items (or otherwise contain provisions pursuant to which the holder can require
such items): (a) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan for the
remainder of its term, (b) the Legal Opinion, and (c) a letter or other written
evidence from the Rating Agencies to the effect that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings assigned to
the Certificates.
30. Fixed Rate Loan. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
31. Inspection. Each related Mortgaged Property was inspected by or
on behalf of the related originator or an affiliate during the 12 month period
prior to the related origination date.
32. No Material Default. To the Mortgage Loan Seller's knowledge,
there exists no material default, breach, violation or event of acceleration
under the
14
Mortgage Note or Mortgage for any Mortgage Loan and no event has occurred which,
with the passing of time or giving of notice and the expiration of any grace or
cure period, would constitute such a material default or breach; provided,
however, that this representation and warranty does not cover any default,
breach, violation or event of acceleration that specifically pertains to or
arises out of the subject matter otherwise covered by any other representation
and warranty made by the Mortgage Loan Seller in this Exhibit C. Neither the
Mortgage Loan Seller nor any servicer on behalf of the Mortgage Loan Seller has
accelerated the Mortgage Loan or commenced judicial or non-judicial foreclosure
proceedings with respect to the Mortgage Loan.
33. Due-on-Sale. Except for transfers to specific parties that are
identified and pre-approved in the Mortgage Loan Documents and except with
respect to certain transfers by reason of family and estate planning and/or a
substitution or release of collateral within the parameters of Paragraph 28
above, each Mortgage contains a "due on sale" clause which expressly or
effectively provides for the acceleration of the payment of the unpaid principal
balance and accrued interest of the related Mortgage Loan if, without the prior
written consent of the holder of such Mortgage and/or the satisfaction of
specified criteria set forth in the related Mortgage Loan Documents, the
property subject to the Mortgage or any material portion thereof, or any
controlling interest in the Borrower is directly or indirectly transferred, sold
or pledged; provided, however, that certain Mortgage Loans provide a mechanism
for the assumption of the loan by a third party upon the Borrower's satisfaction
of certain conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Borrower or constituent entities of the Borrower to
a third party or parties related to the Borrower upon the Borrower's
satisfaction of certain conditions precedent.
34. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $10,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Mortgaged Properties,
and whose organizational documents further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Mortgaged Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan Documents, that it has its own books and records and
accounts separate and apart from any other person, that it holds itself out as a
legal entity (separate and apart from any other person), that it will not
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
except on an arm's-length basis.
15
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Security Interests in Hospitality Properties. If any Mortgaged
Property securing a Mortgage Loan is operated as a hospitality property then (a)
the security agreements, financing statements or other instruments, if any,
related to the Mortgage Loan secured by such Mortgaged Property establish and
create a valid and enforceable (subject to the exceptions set forth in Paragraph
13 above) first priority security interest in all items of personal property
owned by the related Borrower which are material to the conduct in the ordinary
course of the Borrower's business on the related Mortgaged Property, subject
only to purchase money security interests, personal property leases and security
interests to secure revolving lines of credit and similar financing; and (b) one
or more Uniform Commercial Code financing statements covering such personal
property have been filed or recorded (or have been sent for filing or recording)
wherever necessary to perfect under applicable law such security interests (to
the extent a security interest in such personal property can be perfected by the
filing of a Uniform Commercial Code financing statement under applicable law).
The related assignment of such security interest (but for insertion of the name
of the assignee and any related information which is not yet available to the
Mortgage Loan Seller) executed and delivered in favor of the Trustee constitutes
a legal, valid and binding assignment thereof from the relevant assignor to the
Trustee.
37. Prepayment Premiums. Prepayment Premiums payable with respect to
each Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
38. [RESERVED]
39. [RESERVED]
40. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower, or a natural
person, for damages sustained in connection with the Borrower's fraud, material
misrepresentation or misappropriation or misapplication of rents, insurance
proceeds or condemnation proceeds. The related Mortgage Loan Documents contain
provisions pursuant to which the related Borrower, a principal of such Borrower
or an entity controlled by a principal of such Borrower, or a natural person,
has agreed to indemnify the mortgagee for damages resulting from violations of
any applicable environmental covenants.
41. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
42. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
16
43. Escrows. All escrow deposits (including capital improvements,
environmental remediation reserves and other reserve deposits, if any) relating
to any Mortgage Loan that were required to be delivered to the lender under the
terms of the related Mortgage Loan Documents, have been received and, to the
extent of any remaining balances of such escrow deposits, are in the possession
or under the control of Mortgage Loan Seller or its agents (which shall include
the applicable Master Servicer). All such escrow deposits which are required for
the administration and servicing of such Mortgage Loan are conveyed hereunder to
the Purchaser. Any and all material requirements under each Mortgage Loan as to
completion of any material improvements and as to disbursement of any funds
escrowed for such purpose, which requirements were to have been complied with on
or before the Closing Date, have been complied with in all material respects or,
if and to the extent not so complied with, the escrowed funds (or an allocable
portion thereof) have not been released except in accordance with the terms of
the related loan documents.
44. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage Loan Documents require the related Borrower, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than quarterly and
annually and financial statements of the Borrower not less frequently than
annually (except if the Mortgage Loan has an outstanding principal balance of
less than or equal to $4,000,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases the Mortgage Loan
Documents require the Borrower, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Borrower
annually), and such other information as may be required therein.
45. Appraisals. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of the Mortgage Loan, which
appraisal is signed by an appraiser, who, to the Mortgage Loan Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; in connection
with the origination of the Mortgage Loan, each appraiser has represented in
such appraisal or in a supplemental letter that the appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation.
46. No Capital Contributions. The Mortgage Loan Seller has no
obligation to make any capital contributions to the related Borrower under the
Mortgage Loan.
47. Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for Monthly Payments no longer than ten (10) days from the
applicable Due Date.
48. Access Routes. Based solely on surveys, title insurance reports,
the Title Policy, the engineering report, the appraisal and/or other relevant
documents
17
included in the Mortgage File, at the time of origination of the Mortgage Loan,
the Mortgaged Property had access to a public road.
49. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, in
which case the Mortgage Loan requires the Borrower to escrow an amount
sufficient to pay taxes for the existing tax parcel of which the Mortgaged
Property is a part.
50. Loan Servicing. The servicing practices used with respect to
each Mortgage Loan have been in all material respects legal, proper, and
prudent.
51. Terrorism Insurance. With respect to each Mortgage Loan that has
a Stated Principal Balance as of the Cut-off Date that is greater than or equal
to $20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related all risk insurance policy and business
interruption policy did not as of the date of origination of the Mortgage Loan,
and, to the Mortgage Loan Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the mortgagee from requiring coverage for acts of terrorism or
damages related thereto, except to the extent that any right to require such
coverage may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule C to this Agreement.
18
SCHEDULE C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Sch. C-1
SCHEDULE C
Exceptions to Representations and Warranties
REP NO. LOAN NO. LOAN NAME EXPLANATION
------------------------ --------- ----------------------- ---------------------------------
4
Lien; Valid Assignment 51468 RRI Hotel Portfolio The Mortgage Loan is evidenced by
four notes (each pari passu) and
one mortgage. The A-1 pari-passu
Note is securitized in PWR 17.
50053 Circuit City San Xxxxxx The related mortgagor has split
the mortgage loan into a pooled
A-note and non-pooled B-note. The
non-pooled B-note is subordinate
in right of payment to the
related pooled A-note.
12
Environmental Conditions 48482 High Grove Plaza The date of the Environmental
Site Assessment (ESA) report
(10/24/06) and the Property
Condition Assessment (PCA) report
(9/30/06) is dated greater than
twelve (12) months prior to the
Closing Date.
49393 Norfolk Marriott The date of the Environmental
Site Assessment (ESA) report
(11/06/06) and the Property
Condition Assessment (PCA) report
(11/02/06) is dated greater than
twelve (12) months prior to the
Closing Date.
50053 Circuit City San Xxxxxx The date of the Seismic Probable
Maximum Loss (PML) report
(11/28/06) is dated greater than
twelve (12) months prior to the
Closing Date.
14
Insurance 51254 Solo Cup Portfolio Borrower is required to maintain
business interruption or rent
loss insurance providing coverage
for twelve (12) months, rather
than eighteen (18) months plus a
six (6) month period of extended
indemnity despite the Loan being
above $35 million.
00000 Xxxxxxx Xxxxx The insurance
certificates indicate the
property coverage is written
with 100% co-insurance limit.
However, insurance carried on the
property is in excess of the
replacement cost in the
appraisal, therefore, a
co-insurance penalty would not be
in effect.
51732 ARC/ GF Retail Tenant is self-insuring all
Portfolio insurance perils in accordance
(Bridgestone-Dollar with the terms of its lease,
General) which does not require a minimum
net worth or investment grade
credit rating as a condition to
self-insure.
50637 AG Industrial Portfolio Cap for terrorism insurance,
Borrower shall not be required to
pay annual premiums for terrorism
coverage in an amount in excess
of 150% of the all risk premium.
17
Local Law Compliance 49916 0000 Xxxxxx Xxx. Property is currently deemed
"safe with repairs" under NY
Local Law 11. Currently, the
required repairs to the exterior
walls and facade are under
contract with an engineer to be
completed within the time frames
set forth in the Loan Documents.
In addition, Borrower is required
under the Loan Documents to (i)
escrow $167,750 until the
Property is in full compliance
with local law 11 and (ii)
perform all work and repairs and
file all documentation required
to bring the Property into
compliance within 18 months of
the closing date.
18
Leasehold Interests 50492 Walgreens Haverhill A portion of the property is
encumbered by a Ground Lease. The
Ground Lease fails to provide
that the ground lessor will not
amend or modify the ground lease
without notice and consent of
Lender. However, Borrower
granted a covenant in the loan
documents that it will not amend
or modify the ground lease
without notice and consent of
Lender and there is recourse to
the
Borrower and Guarantors for
losses due to any such amendment
or modification.
51468 RRI Hotel Portfolio Milford, Connecticut (RRI #7197)
18(f): The term of the Ground
Lease (including all extensions
and renewals) is set to expire on
August 19, 2028.
18(i): As per the Ground Lease,
lessee shall not sublet any of
the Motel Premises (as defined in
the Ground Lease) without
lessor's prior consent, which
consent shall not be unreasonably
withheld. Lessee may sublet any
of the Remaining Premises (as
defined in the Ground Lease)
without the consent of lessor.
Mansfield, Massachusetts (RRI
#7274)
18(i): As per the Ground Lease,
lessee shall not sublet any of
the demised premises without
lessor's prior written consent,
which consent shall not be
unreasonably withheld or delayed;
provided, however, that lessor's
consent shall not be required for
a sublease to an affiliate of
lessee, defined as another entity
that controls lessee, is
controlled by lessee, or
controlled by the same party that
controls lessee, or for the
subleasing or licensing to others
of insubstantial portions of the
building in accordance with
typical hotel or motel practices
(e.g. for a newsstand, gift shop,
or the like).
Tucson, Arizona (RRI #7225).
This Ground Lease only applies to
the renting of lobby space for
the hotel property which is owned
in fee by the related mortgage
borrower.
18(f): The term of the Ground
Lease (including all extensions
and renewal options) is set to
expire December 18, 2014.
18(h): The Ground Lease is
silent on the issue of
distribution of insurance
proceeds. As per the Ground
Lease, all condemnation proceeds
belong to the landlord. This
Ground Lease is for lobby space
in an adjacent building and is
not a land lease.
23
Other Mortgage Liens 50053 Circuit City San Xxxxxx The related Mortgagor has the
right to incur secondary
financing in the form of a
mezzanine debt secured by a
pledge of equity interest in the
Borrower subject to a maximum LTV
of 70% and a minimum DSCR of
1.12x (at a 7.23% constant),
which shall be subject to a
subordination and standstill
agreement.
51468 RRI Hotel Portfolio The direct and indirect owner of
100% of the related Mortgagor has
incurred mezzanine debt in the
amount of $1 and $164,000,000,
respectively. Each Mezzanine
Lender (Bear Xxxxxxx Commercial
Mortgage, Inc. as first mezzanine
lender, and Citigroup Global
Markets Realty Corp.) entered
into an intercreditor,
subordination, standstill
agreement.
50637 AG Industrial Portfolio The related Mortgagor has the
right to incur secondary
financing in the form of
mezzanine debt, subject to a
minimum DSCR of 1.25x and a
maximum LTV of 72.35% (or
$4,350,000 if greater than such
LTV), which shall be subject to
an intercreditor agreement.
28
Releases/Substitution of 51468 RRI Hotel Portfolio The Loan provides for either (a)
Mortgaged Property prepayment upon payment of 115%
of the allocated loan amount
together with the applicable
prepayment premiums. The amount
in excess of par that is received
as a payment will be applied to
reduce the allocated
loan amounts of the other
portfolio collateral pro rata.
Among other things, the release
shall not be permitted if the
DSCR for the unreleased property
is less than the closing DSCR or
the DSCR immediately prior to the
release (based on a trailing 12
month basis) or the Debt Yield is
less than the Debt Yield at
closing or the Debt Yield
immediately prior to the release
(based on a trailing 12 month
basis) or (b) The Loan provides
for the release of one or more
properties upon defeasing 115% of
the allocated loan amount. The
related Mortgagor may obtain
substitution of property upon (a)
the satisfaction of certain legal
and underwriting requirements
and/or (b) the payment of a
release price and prepayment
consideration in connection
therewith as set forth above. In
addition, Lender shall have
received confirmation in writing
from the Rating Agencies to the
effect that such substitution
will not result in a withdrawal,
qualification or downgrade of the
respective ratings in effect
immediately prior to such
substitution for any class of
securities issued in connection
with the securitization that are
then outstanding.
50026, Rite Aid Portfolio - The Loan provides for partial
00000, Xxx Xxxxxxxxxxxx - defeasance upon payment of 110%
50468 and Flatwoods - New (for New Salisbury, Salem and New
50469 Salisbury - Salem Philadelphia) and 115% (for
Flatwoods) of the allocated loan
amount together with the
applicable prepayment premiums.
The amount in excess of par that
is received as a payment will be
applied to prepay the remaining
indebtedness or be held in escrow
as additional collateral for the
subject loan as determined by
Lender in its sole discretion.
Among other things, the release
shall not be permitted if the
DSCR for the unreleased
properties is less than 1.35x or
the LTV is greater than 80%.
48482 High Grove Plaza The Loan provides for the release
of an outparcel subject to no
event of default, zoning
compliance and an acceptable REA.
51420 Sentinel & Blossom The Loan provides for the release
of one properties upon Defeasance
equal to 125% of the allocated
loan amount and achieving a
1.15x DSCR prior to release or
1.50x DSCR after release
(assuming 7.43% debt service
constant) and 75% LTV.
51254 Solo Cup Portfolio The Loan provides for release of
the subject property in
connection with a payment of 125%
of the allocated loan amount
together with any prepayment
premiums. Among other things,
the release shall not be
permitted if the DSCR for the
remaining properties is less than
the greater of 1.25x (at a 7.33
constant) or the DSCR immediately
preceding the release and the LTV
is less than 75%.
00000 Xxxxxx Xxxxx The Loan provides for the release
of a portion of the property
(vacant land) upon completion of
a condominium conversion or
subdivision. There is no paydown
of the Loan associated with the
release. Among other things, the
release shall be subject to (i)
Lender approval of construction
plans for the release parcel and
(ii) confirmation in writing from
the Rating Agencies to the effect
that such release will not result
in a withdrawal, qualification or
downgrade of the respective
ratings in effect immediately
prior to such release for any
class of securities issued in
connection with the
securitization that are
then outstanding.
51732 ARC/ GF Retail The Loan provides for partial
Portfolio defeasance upon payment of 125%
(Bridgestone-Dollar of the allocated loan amount
General) together with the applicable
prepayment premiums. The amount
in excess of par that is received
as a payment will be applied to
prepay the remaining indebtedness
or be held in escrow as
additional collateral for the
subject loan as determined by
Lender in its sole discretion.
Among other things, the release
shall not be permitted if the
DSCR for the unreleased
properties is less than 1.54x or
the LTV is greater than 65%.
52097 Gulf Pointe 30 Borrower may substitute an
unimproved portion of the
Property now used for parking
with "like kind" contiguous
property upon satisfaction of
certain conditions set forth in
the loan documents, including,
without limitation, fair market
value test and a rating agency
"no downgrade". Borrower may
obtain an outparcel release upon
satisfaction of certain
conditions set forth in the loan
documents, including, without
limitation, a rating agency "no
downgrade".
52098 Mesquite 30 Borrower may substitute an
unimproved portion of the
Property now used for parking
with "like kind" contiguous
property upon satisfaction of
certain conditions set forth in
the loan documents, including,
without limitation, fair market
value test and a rating agency
"no downgrade". Borrower may
obtain an outparcel release upon
satisfaction of certain
conditions set forth in the loan
documents, including, without
limitation, a rating agency "no
downgrade".
33
Due on Sale 51468 RRI Hotel Portfolio The Loan allows for transfers of
more than 49% ownership interests
in the related Mortgagor as long
as key principals remain in
operational control of the
related Mortgagor.
49393 Norfolk Marriott The Loan allows for transfers of
more than 49% ownership interests
in the related Mortgagor as long
as key principals remain in
operational control of the
related Mortgagor.
50026, Rite Aid Portfolio - The Loan allows for transfers of
00000, Xxx Xxxxxxxxxxxx - more than 49% ownership interests
50468 and Flatwoods - New in the related Mortgagor as long
50469 Salisbury - Salem as key principals remain in
operational control of the
related Mortgagor and the
incoming transferee meets all of
Lender's standard underwriting
criteria.
51732 ARC/ GF Retail The Loan allows for transfers of
Portfolio more than 49% ownership interests
(Bridgestone-Dollar in the related Mortgagor as long
General) as key principals remain in
operational control of the
related Mortgagor and the
incoming transferee meets all of
Lender's standard underwriting
criteria.
51383 The Outpost The Loan allows transfers of
tenant-in-common interests in the
Mortgaged Property.
51723 2695 Mount Xxxxxx The Loan allows transfers of
tenant-in-common interests in the
Mortgaged Property.
51232 FedEx Xxxxxxxx The Loan allows transfers of
tenant-in-common interests in the
Mortgaged Property.
34
Single Purpose entity 51418 Toluca Towers The organizational documents for
the borrowing entity does not
contain customary single purpose
bankruptcy remote provisions.
However, the Loan Documents for
the subject loan contain all
customary and standard single
purpose bankruptcy remote
provisions. In addition,
searches
run by the title company and
BSCMI revealed no other
liabilities except for standard
expenses incurred in connection
with the operation of the subject
property.
40
Non-Recourse Exceptions 51468 RRI Hotel Portfolio Non-recourse provisions go to the
related Mortgagor and to WRHH
Investments LP, but not to a
"natural person". The entity
must maintain a net worth of
$37,500,0000.
49393 Norfolk Marriott Non-recourse provisions go to the
related Mortgagor and to
Investcorp Properties Limited and
Prochotel Invest, LLC, but not to
a "natural person".
50382 Reserve at John's Creek Non-recourse provisions go to the
related Mortgagor and to
Behringer Harvard Multifamily
REIT I, Inc. and Abbotts Bridge,
but not to a "natural person".
50053 Circuit City San Xxxxxx Non-recourse provisions go to the
related Mortgagor and to Simeon
Realty Partners I, LLC, but not
to a "natural person".
51254 Solo Cup Portfolio Non-recourse provisions go to the
related Mortgagor, AG Net Lease
Corp. and iStar Financial, Inc.,
but not to a "natural person".
Carve outs are capped at $25mm.
52097 Gulf Pointe 30 Non-recourse provisions go to the
related Mortgagor and to EPT
Downreit, Inc., but not to a
"natural person".
52098 Mesquite 30 Non-recourse provisions go to the
related Mortgagor and to EPT
Downreit, Inc., but not to a
"natural person".
50637 AG Industrial Portfolio Non-recourse provisions go to the
related Mortgagor and to AG Net
Lease Corp., but not to a
"natural person". Carve outs
are capped at $4,435,000.
42
Operating Statements 51254 Solo Cup Portfolio Borrower is only required to
provide operating statements and
rent rolls more frequently than
annually in the event that more
than one Lease is at any time in
effect at the Properties (note
that this is a single tenant
transaction).
49
Tax Parcels 00000 Xxxxx Xxxxx As of closing, one of the tax
lots includes adjacent property
owned by an affiliate of the
Borrower which is not part of our
collateral. An application for
segregation of the tax parcel is
to be filed post closing.
Borrower is required to escrow
taxes for the entire tax parcel
until such time it is segregated.
51
Terrorism Insurance 51468 RRI Hotel Portfolio Under the loan documents, the
cost of terrorism insurance is
capped at 175% of the then
current cost of the Borrower's
all risk policy.
50026, Rite Aid Portfolio - Under the loan documents, the
00000, Xxx Xxxxxxxxxxxx - cost of terrorism insurance is
50468 and Flatwoods - New capped at 200% of the then
50469 Salisbury - Salem current cost of the Borrower's
all risk policy.
51254 Solo Cup Portfolio Cap for terrorism insurance,
Borrower shall not be required to
pay annual premiums for terrorism
coverage in an amount in excess
of 150% of the all risk insurance
and business interruption
insurance without such coverage.
00000 Xxxxxx Xxxxx Under the loan documents, the
cost of terrorism insurance is
capped at $3,000 if combined with
all-risk or $10,000 on a
stand-alone basis.
51732 ARC/ GF Retail Under the loan documents, the
Portfolio cost of terrorism insurance is
(Bridgestone-Dollar capped at 200% of the then
General) current cost of the Borrower's
all risk policy. If terrorism
premium
cap is not sufficient to purchase
required coverage, Borrower shall
purchase the maximum amount of
coverage available up to the
terrorism premium cap.
50637 AG Industrial Portfolio Cap for terrorism insurance,
Borrower shall not be required to
pay annual premiums for terrorism
coverage in an amount in excess
of 150% of the all risk premium.
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed certificate attached at Tab 40.
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 Bear Xxxxxxx
Commercial Mortgage, Inc. ("BSCMI") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase and Sale
Agreement dated as of December 13, 2007 (the "Mortgage Loan Purchase Agreement")
among BSCMI 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 BSCMI 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) BSCMI
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 BSCMI. Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement.
Certified this ___ day of December, 2007.
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC.
By:
----------------------------------------
Name:
Title:
Ex. D-2-1
EXHIBIT D-3A
FORM OF OPINION PURSUANT TO SECTION 7(VI)
Executed opinion attached at Tab 81.
Ex. D-3A-1
EXHIBIT D-3B
FORM OF OPINION PURSUANT TO SECTION 7(VII)
Executed opinion attached at Tab 80.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(VIII)
Executed opinion attached at Tab 77 and Tab 78.
Ex. D-3C-1
