EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this
"Agreement") dated as of February 1, 1999, is between Bear Xxxxxxx Commercial
Mortgage Securities Inc., a Delaware corporation (the "Purchaser") and Bear
Xxxxxxx Funding, Inc. (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (the "Mortgage Loans"), which are described in, and set forth
in, the mortgage loan schedule (the "Mortgage Loan Schedule") attached as Annex
A to the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") dated as of February 1, 1999, by and between Bear Xxxxxxx
Commercial Mortgage Securities Inc., as depositor, GE Capital Loan Services,
Inc., as servicer (the "Servicer") and GE Capital Realty Group, Inc., as
special servicer (the "Special Servicer"), LaSalle National Bank, as trustee
(in such capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the
"Fiscal Agent").
The Purchaser intends to deposit the Mortgage Loans into a
trust fund (the "Trust Fund"), beneficial ownership of which will be evidenced
by a series of mortgage pass-through certificates (the "Certificates"). The
Trust Fund will be created and the Certificates will be issued pursuant to the
Pooling and Servicing Agreement. The Purchaser intends to sell certain of the
Certificates (the "Privately Placed Certificates") in a private placement
pursuant to Section 4(2) of the Securities Act of 1933 (the "Securities Act")
through Bear, Xxxxxxx & Co. Inc. (in such capacity, the "Placement Agent") on
the Closing Date (defined below) pursuant to a Private Placement Agency
Agreement (the "Placement Agency Agreement") dated January 26, 1999. The
Purchaser intends to sell certain of the Certificates (the "Publicly Offered
Certificates") to Bear, Xxxxxxx & Co. Inc. (in such capacity, the
"Underwriter") on the Closing Date pursuant to an underwriting agreement and a
terms agreement (collectively, the "Underwriting Agreement") dated January 26,
1999. Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I.
DEFINITIONS
"Breach": Has the meaning ascribed to such term in Section 3.3.
"Closing Date": February 10, 1999.
"Cut-off Date": February 1, 1999.
"Defective Document Mortgage Loan": Has the meaning ascribed to such
term in Section 3.3(b).
"Existing Conditions": Has the meaning ascribed to such term in
Section 3.2(a)(xxii).
"Founders Plaza & Tower 14 Intercreditor Agreement": The intercreditor
agreement, dated August 7, 1998, by and between the Mortgage Loan Seller and
Bear, Xxxxxxx Funding, Inc., setting forth the respective rights thereof with
respect to the collateral securing the Founders Plaza & Tower 14 Mortgage Loan
and the Founders Plaza & Tower 14 Pari Passu Mortgage Loan and the enforcement
of provisions of such mortgage loans (including with respect to foreclosure on
such collateral), substantially in the form attached hereto as Exhibit M.
"Founders Plaza & Tower 14 LC": A $5,100,000 letter of credit issued
by Bank of America that may be drawn and applied to the repayment of the
Founders Plaza & Tower 14 Pari Passu Mortgage Loan if certain conditions to
mandatory prepayment of such mortgage loan are not timely satisfied.
"Founders Plaza & Tower 14 Mortgage Loan": The Mortgage Loan
designated as Mortgage Loan ID number 11969 on the Mortgage Loan Schedule.
"Founders Plaza & Tower 14 Pari Passu Mortgage Loan" The mortgage loan
in the principal amount of $5,100,000, which is secured on a pari passu basis
with the Founders Plaza & Tower 14 Mortgage Loan pursuant to the terms of the
Founders Plaza & Tower 14 Intercreditor Agreement.
"Hazardous Materials": Has the meaning ascribed to such term in
Section 3.2(a)(xxii).
"Intercreditor Agreement": means the Founders Plaza & Tower 14
Intercreditor Agreement or the Lomas Santa Fe Center Intercreditor Agreement,
as indicated by the context.
"Lomas Santa Fe Center Intercreditor Agreement": The intercreditor
agreement, dated June 29, 1998, by and between the Mortgage Loan Seller and
Bear, Xxxxxxx Funding, Inc., setting forth the respective rights thereof with
respect to the collateral securing the Lomas Santa Fe Center Mortgage Loan and
the Lomas Santa Fe Center Pari Passu Mortgage Loan and the enforcement of
provisions of such mortgage loans (including with respect to foreclosure on
such collateral), substantially in the form attached hereto as Exhibit N.
"Lomas Santa Fe Center Mortgage Loan": The Mortgage Loan designated as
Mortgage Loan ID number 16393 on the Mortgage Loan Schedule.
"Lomas Santa Fe Center Pari Passu Loan": The mortgage loan in the
principal amount of $21,400,000, which is secured on a pari passu basis with
the Lomas Santa Fe Center Mortgage Loan pursuant to the terms of the Lomas
Santa Fe Center Intercreditor Agreement.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
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"Mortgage File": Has the meaning ascribed to such term in Section
2.4(a).
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund; it being understood that the Pari Passu Loan is not a Mortgage Loan. As
used herein, the term "Mortgage Loan" includes each related Mortgage Note, the
related Mortgage and other documents contained in the related Mortgage File and
any related agreements.
"Mortgage Loan Documents": Has the meaning ascribed to such term in
Section 3.2(a)(iii).
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Other Debt": Has the meaning ascribed to such term in Section
3.2(a)(xliii).
"Pari Passu Loan": Means the Founders Plaza & Tower 14 Pari Passu Loan
or the Lomas Santa Fe Center Pari Passu Loan, as indicated by the context.
"Purchase Price": Has the meaning ascribed to such term in Section
2.2.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if
such section or publication is no longer available, such other comparable
publication as determined by the Trustee in its reasonable discretion) as may
be in effect from time to time, or, if the "Prime Rate" no longer exists, such
other comparable rate (as determined by the Trustee in its reasonable
discretion) as may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan
required to be purchased pursuant to Section 3.3, an amount equal to the sum
of:
(i) the outstanding principal balance of such Mortgage Loan
as of the date of purchase;
(ii) all accrued and unpaid interest to but not including the
Due Date in the Due Period during which such Mortgage Loan or REO Loan
was purchased;
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest or related P&I Advances at the Reimbursement Rate
and unpaid Servicing Fees and Special Servicing Fees (except where the
Servicer is the purchaser); plus
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(iv) all reasonable out-of-pocket expenses reasonably
incurred or to be incurred by the Servicer, the Special Servicer or
the Trustee in respect of the Breach or defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Senior Debt": Has the meaning ascribed to such term in Section
3.2(a)(xliii).
"Subordinate Lender": Has the meaning ascribed to such term in Section
3.2(a)(xliii).
[End of Article I]
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ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the
terms and conditions of this Agreement, the Mortgage Loan Seller agrees to
sell, and the Purchaser agrees to purchase, the Mortgage Loans on the Closing
Date; provided, however, that the Purchaser shall not be obligated to purchase
any Mortgage Loan which fails to satisfy the representations and warranties set
forth in Section 3.1 hereof.
(b) The closing for the purchase and sale of the Mortgage
Loans shall take place at the offices of O'Melveny & Xxxxx LLP, New York, New
York, at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full
consideration for the Mortgage Loan Seller's sale of the Mortgage Loans to the
Purchaser, the Purchaser will deliver to the Mortgage Loan Seller the purchase
price (the "Purchase Price") for the Mortgage Loans in an amount equal to
$498,879,046.46 in immediately available funds.
2.3. Conveyance of Mortgage Loans. On the Closing Date, the
Mortgage Loan Seller shall sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse but subject to the terms of this
Agreement, and the Purchaser shall purchase, all right, title and interest of
the Mortgage Loan Seller in and to the Mortgage Loans, including: (i) all
scheduled payments of interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date (whether or not received); (ii) all other
payments of interest and principal received by the Mortgage Loan Seller on or
with respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal which were due on or prior to the Cut-off
Date; and (iii) all of the Mortgage Loan Seller's right, title and interest in
and to the proceeds of any related title, hazard or other insurance policies
received by the Mortgage Loan Seller on or with respect to the Mortgage Loans
after the Cut-off Date. Upon payment of the Purchase Price as provided in
Section 2.2, the Mortgage Loan Seller shall be deemed to have sold,
transferred, assigned, set over and conveyed to the Purchaser the Mortgage
Loans, together with all right title and interest of the Mortgage Loan Seller
in and to the Mortgage Loans as described in the immediately preceding
sentence. Upon such sale the ownership of each Mortgage Note, the Mortgage and
all related documents and instruments contained in the related Mortgage File
shall immediately vest in the Purchaser, its successors and assigns and the
ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of the Mortgage Loan Seller
shall immediately vest in the Purchaser, its successors and assigns. The
contents of any Mortgage File in the possession of the Mortgage Loan Seller at
any time after such sale, and any payments on the Mortgage Loans due after the
Cut-off Date and received by the Mortgage Loan Seller, shall be held in trust
by the Mortgage Loan Seller for the benefit of the Purchaser, its successors
and assigns as the owner thereof, and shall be promptly delivered by the
Mortgage Loan Seller to or upon the order of the Purchaser, its successors and
assigns.
2.4. Delivery of Mortgage Loan Documents. (a) On or before
the Closing Date, the Mortgage Loan Seller shall deliver to and deposit with,
or cause to be delivered to and deposited with, the Purchaser, the Trustee or a
custodian of the Trustee (as Purchaser shall
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direct), each of the following documents for each Mortgage Loan (such
documents, the "Mortgage File"):
(i) each original Mortgage Note, bearing, or accompanied by,
all prior and intervening endorsements or assignments showing a
complete chain of endorsement or assignment from the originator of the
Mortgage Loan to the Mortgage Loan Seller, and further endorsed (at
the direction of the Depositor given pursuant to the Mortgage Loan
Purchase and Sale Agreement), on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the
following form: "Pay to the order of LaSalle National Bank, as trustee
for the registered Holders of Bear Xxxxxxx Commercial Mortgage
Securities Inc. Commercial Mortgage Pass-Through Certificates, Series
1999-C1, without recourse, representation or warranty, express or
implied";
(ii) the original Mortgage (or a certified copy thereof from
the applicable recording office) and originals (or certified copies
from the applicable recording office) of any intervening assignments
thereof showing a complete chain of assignment from the originator of
the Mortgage Loan to the Mortgage Loan Seller, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form, to "LaSalle National Bank, as trustee for the registered Holders
of Bear Xxxxxxx Commercial Mortgage Securities Inc. Commercial
Mortgage Pass-Through Certificates, Series 1999-C1"; provided that,
with respect to the Servicing Retained Mortgage Loan, a copy of the
equivalent delivered to the Trustee under the Servicing Retained
Servicing Agreement shall be delivered hereunder;
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the Mortgage Loan Seller, in each case with evidence of recording
thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller in favor of the
Trustee (in such capacity); provided that, with respect to the
Servicing Retained Mortgage Loan, a copy of the equivalent delivered
to the Trustee under the Servicing Retained Servicing Agreement shall
be delivered hereunder;
(vi) an original or copy of any related Security Agreement
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage Loan
to the Mortgage Loan Seller, in each case with evidence of recording
thereon;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage
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Loan Seller in favor of the Trustee (in such capacity); provided
that, with respect to the Servicing Retained Mortgage Loan, a copy of
the equivalent delivered to the Trustee under the Servicing Retained
Servicing Agreement shall be delivered hereunder;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were issued with
or subsequent to the issuance of such policy, insuring the priority of
the Mortgage as a first lien on the Mortgagor's fee interest in the
Mortgaged Property, or if the policy has not yet been issued, an
original or copy of a written commitment, interim binder or the pro
forma title insurance policy, dated as of the date on which the
related Mortgage Loan was funded;
(x) the original or a copy of any guaranty of the obligations
of the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements and continuation statements
or copies thereof sufficient to perfect (and maintain the perfection
of) the security interest held by the originator of the Mortgage Loan
(and each assignee prior to the Trustee) in and to the personalty of
the Mortgagor at the Mortgaged Property (in each case with evidence of
filing thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, any Mortgage Note or other document or instrument referred
to above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt
that is subordinate to such Mortgage Loan, a subordination agreement,
pursuant to which such Additional Debt is subordinated to such
Mortgage Loan; with respect to each Related Trust Fund Mortgage Loan,
the related Pari Passu Intercreditor Agreement, a copy of the note
evidencing the related Pari Passu Loan and a copy of the Pari Passu
LC, if any; and with respect to the Servicing Retained Mortgage Loan,
a copy of the Servicing Retained Servicing Agreement and the Servicing
Retained Mortgage Loan Intercreditor Agreement; and
(xiv) a survey of the related Mortgaged Property; and
(xv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement.
(b) If the Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original
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thereof has been lost or destroyed and indemnification of the Purchaser and of
the Trustee on behalf of the Trust Fund against any losses that the Trust Fund
may incur by reason of such lost or destroyed Mortgage Note. If the Mortgage
Loan Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in clauses (ii), (iv),
(vi), (vii) and (viii) of Section 2.4(a), with evidence of recording thereon,
solely because of a delay caused by the public recording office where such
document or instrument has been delivered for recordation, the delivery
requirements of this Mortgage Loan Purchase Agreement shall be deemed to have
been satisfied as to such non-delivered document or instrument provided that a
photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Purchaser, the Trustee or a
Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) to be
a true and complete copy of the original thereof submitted for recording), with
evidence of recording thereon, is delivered to the Purchaser, the Trustee or
such Custodian within 120 days of the Closing Date (or within such longer
period after the Closing Date as the Purchaser may consent to, which consent
shall not be unreasonably withheld so long as the Mortgage Loan Seller is, as
certified in writing to the Purchaser and the Trustee no less often than every
90 days, in good faith attempting to obtain from the appropriate county
recorder's office such original or photocopy). If the Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in the definition of "Mortgage File",
with evidence of recording thereon, for any other reason, including, without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this Section 2.4(b) shall be deemed to have been
satisfied as to such non-delivered document or instrument and such
non-delivered document or instrument shall be deemed to have been included in
the Mortgage File, provided that a photocopy of such non-delivered document or
instrument (with evidence of recording thereon and certified in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) by
the appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Purchaser, the
Trustee or a Custodian appointed thereby on or before the Closing Date together
with an affidavit certifying that the original thereof has been lost or
destroyed. With respect to any Mortgage Loan, and notwithstanding the foregoing
or Section 2.4(a), the Mortgage Loan Seller may deliver a UCC-3 on or before
the Closing Date that does not contain the filing information for the related
UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has not been returned to the
Mortgage Loan Seller by the applicable filing office, and the Mortgage Loan
Seller may deliver an assignment referred to in clauses (iii), (v) or (vii) of
Section 2.4(a) that does not contain the recording information for the related
Mortgage, Assignment of Leases or Security Agreement, as applicable, if such
Mortgage, Assignment of Leases or Security Agreement has not been returned to
the Mortgage Loan Seller by the applicable recording office. The Mortgage Loan
Seller hereby authorizes the Purchaser, acting in its stead and on its behalf,
to fill in any missing filing or recording information or any instrument or
document required to be delivered pursuant to this subsection (b).
(c) Except under the circumstances provided for in the last
sentence of this subsection (c), the Mortgage Loan Seller shall as to each
Mortgage Loan, promptly (and in any event within 30 days of the later of the
Closing Date and the Purchaser's and Trustee's actual
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receipt of the related documents) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, as appropriate, each assignment referred
to in clauses (iii), (v) and (vii) of Section 2.4(a) and each UCC-3 to the
Trustee. Each such assignment shall reflect that it should be returned by the
public recording office to the Trustee or its designee following recording, and
each such UCC-3 shall reflect that the file copy thereof should be returned to
the Trustee or its designee following filing. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Purchaser, the Trustee or a Custodian or its
agent shall prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. The
Purchaser shall execute, or cause the Mortgage Loan Seller to execute any
replacement document or instrument being filed in substitution for any such
lost or returned unrecorded or unfiled document or instrument and assist the
Purchaser, the Trustee or a Custodian or its agent in recording or filing such
documents or instruments. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee referred to in clause
(iii), (v) or (vii) of the Section 2.4(a), or to file any UCC-3 referred to in
clause (xi) of Section 2.4(a) in those jurisdictions where, in the written
opinion of local counsel of Purchaser, the Trustee or a Custodian acceptable to
the Purchaser and the Trustee, such recordation and/or filing is not required
to protect the Purchaser's or the Trustee's interest in the Mortgage Loans
against sale, further assignment, satisfaction or discharge by the Mortgage
Loan Seller or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in
escrow accounts maintained with respect to the Mortgage Loans in the name of
the Mortgage Loan Seller or any other name to be transferred to the Servicer
promptly after the Closing Date, but in all events within three (3) business
days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Within 90 days of the
Closing Date, the Purchaser or an assignee thereof, which may include the
Trustee or a Custodian on its behalf, shall complete a review of each of the
Mortgage Loan documents delivered or caused to be delivered by the Mortgage
Loan Seller constituting the Mortgage Files in order to ascertain, as to each
Mortgage Loan, that (i) all documents required to be delivered pursuant to
Section 2.4 are in its possession, (ii) such documents appear regular on their
face and relate to such Mortgage Loan, and (iii) based on the examinations
referred to in this Section 2.5 and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses [(i), (ii), (iii), (iv), (vi) and (viii)(c)] of the
definition of "Mortgage Loan Schedule" set forth in the Pooling and Servicing
Agreement is correct. If the Purchaser or such assignee discovers or receives
notice that any such document described in the first or second preceding
sentence is a Defective Document Mortgage Loan, the Mortgage Loan Seller shall
correct or cure any such omission or defect or repurchase such Defective
Document Mortgage Loan in accordance with Section 3.3 of this Agreement.
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ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the
Closing Date:
(i) The Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware, and the Purchaser has taken all necessary
corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and
all the transactions contemplated hereby, including, but not
limited to, the power and authority to purchase and acquire
the Mortgage Loans in accordance with this Agreement;
(ii) Assuming the due authorization, execution and
delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Purchaser
hereunder are the legal, valid and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance
with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) The execution and delivery of this Agreement
and the performance of its obligations hereunder by the
Purchaser will not conflict with any provisions of any law or
regulations to which the Purchaser is subject, or conflict
with, result in a breach of or constitute a default under any
of the terms, conditions or provisions of the certificate of
incorporation or the by-laws of the Purchaser or any
indenture, agreement or instrument to which the Purchaser is
a party or by which it is bound, or any order or decree
applicable to the Purchaser, or result in the creation or
imposition of any lien on any of the Purchaser's assets or
property, which would materially and adversely affect the
ability of the Purchaser to carry out the transactions
contemplated by this Agreement; the Purchaser has obtained
any consent, approval, authorization or order of any court or
governmental agency or body required for the execution,
delivery and performance by the Purchaser of this Agreement;
(iv) There is no action, suit or proceeding pending
or, to the Purchaser's knowledge, threatened against the
Purchaser in any court or by or before any other governmental
agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the
ability of the Purchaser to carry out the transactions
contemplated by this Agreement.
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3.2. Representations and Warranties of the Mortgage Loan
Seller. The Mortgage Loan Seller hereby represents and warrants with respect to
each Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(a) Representations and Warranties as to the Mortgage Loans.
The Mortgage Loan Seller hereby represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(i) Title. Immediately prior to the sale, transfer
and assignment to the Purchaser, the Mortgage Loan Seller had
good title to, and was the sole owner of, each Mortgage Loan
and had full right and authority to sell, transfer and assign
each Mortgage Loan;
(ii) No Other Security Interests. The Mortgage Loan
Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan and none of the
Mortgage Note, the Mortgage or any other Mortgage Loan
Documents (as defined below) prohibits such transfer;
(iii) Documents Valid. Each related Mortgage Note,
Mortgage, Assignment of Leases (if any) and other agreement
executed in connection with such Mortgage Loan (collectively,
the "Mortgage Loan Documents") are legal, valid and binding
obligations of the related Mortgagor, enforceable in
accordance with their terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of
creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law), and except that certain
provisions of such Mortgage Loan Documents are or may be
unenforceable in whole or in part under applicable law, but
such unenforceability of such provisions does not render such
Mortgage Loan Documents inadequate for the practical
realization of the rights and benefits intended to be
afforded thereby;
(iv) Assignment of Leases. The mortgage file with
respect to such Mortgage Loan contains an assignment of
leases either as a separate instrument or incorporated into
the related Mortgage or both, which creates a valid,
collateral or first priority assignment of, or a valid first
priority security interest in, certain rights under the
related lease (including rights to receive payments
thereunder), subject only to a license granted to the related
Mortgagor to exercise certain rights and to perform certain
obligations of the lessor under such leases, including the
right to operate the related Mortgaged Property;
(v) Assignment of Mortgage. Each related assignment
of Mortgage, assignment of Mortgage Loan Documents and
Mortgage Note allonge from the Mortgage Loan Seller to the
Purchaser and any related reassignment of Assignment of
Leases, if any, and any assignment of any other agreement
executed in connection with the assignment of such Mortgage
Loan, from the
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Mortgage Loan Seller to the Purchaser has been duly
authorized, executed and delivered by the Mortgage Loan
Seller and constitutes the legal, valid and binding
assignment from the Mortgage Loan Seller to the Purchaser,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law). Each assignment of
Mortgage and any related reassignments of Assignment of
leases, if any, is in recordable form;
(vi) No Modification; No Release. Since origination
of such Mortgage Loan neither such Mortgage Loan nor any
related Mortgage Loan Document has been modified, altered,
satisfied, canceled, subordinated, impaired, waived or
rescinded, and no material portion of the related Mortgaged
Property has been released from the lien of the related
Mortgage, in each case, in any manner which materially and
adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be
provided by such Mortgage, and the terms of the related
Mortgage do not provide for release of any material portion
of the Mortgaged Property from the lien of the Mortgage
(except in consideration of payment therefor) in any manner
that would materially and adversely affect the value of the
Mortgage Loan or materially interfere with the security
intended to be provided to be provided by such Mortgage;
(vii) No Mechanics' Liens. Each related Mortgage is
a valid and enforceable first priority lien on the related
Mortgaged Property (subject to the matters described in
clause (viii) below), and such Mortgaged Property is free and
clear of any mechanics' and materialmen's liens which are
superior to or equal with the lien of the related Mortgage,
except those which are insured against by a lender's title
insurance policy (as described in clause (viii) below);
(viii) First Priority Lien. The lien of each related
Mortgage as a first priority lien in the original principal
amount of such Mortgage Loan (as set forth on the Mortgage
Loan Schedule) after all advances of principal, is insured by
an ALTA lender's title insurance policy (or a binding
commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Mortgage Loan Seller,
its successors and assigns, subject only to (a) the lien of
current real property 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 of public record, none of which,
individually or in the aggregate, materially interferes with
the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations when they become
due or materially and adversely affects the operation or
value of the Mortgaged Property and (c) the exceptions
(general and specific) set forth in such policy, (i) none of
which, individually or in the aggregate, materially
interferes with the current use or operation of the Mortgaged
Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its
obligations when they become due or
12
materially and adversely affects the value of the Mortgaged
Property and (ii) none of which constitute standard general
exceptions for encroachments, boundary and other survey
matters; the Mortgage Loan Seller and its successors or
assigns are the only named insureds of such policy; such
policy is assignable to the Purchaser without the consent of
or any notification to the insurer, and is in full force and
effect upon the consummation of the transactions contemplated
by this Agreement; no claims have been made under such policy
and to Mortgage Loan Seller's knowledge, no prior holder of
the related Mortgage has done anything, by act or omission,
and the Mortgage Loan Seller has no knowledge of any matter,
which would impair or diminish the coverage of such policy,
and the insurer issuing such policy is qualified to do
business in the jurisdiction in which the related Mortgaged
Property is located;
(ix) Proceeds Fully Disbursed. The proceeds of such
Mortgage Loan have been fully disbursed and there is no
requirement for future advances thereunder and the Mortgage
Loan Seller covenants that it will not make any future
advances under the Mortgage Loan to the related Mortgagor;
(x) Physical Condition of Mortgaged Property. To the
Mortgage Loan Seller's knowledge, after conducting due
diligence consistent with the practice of institutional
lenders generally for properties of the same type as the
related Mortgaged Property (including the review of any
engineering report prepared in connection with the
origination of, or obtained in connection with the Mortgage
Loan Seller's acquisition of, each Mortgage Loan), each
related Mortgaged Property is free and clear of any damage
that would affect materially and adversely the value of such
Mortgaged Property as security for the Mortgage Loan and, to
the best knowledge of the Mortgage Loan Seller, there is no
proceeding pending for the total or partial condemnation of
such Mortgaged Property, other than proceedings as to partial
condemnation which do not materially and adversely affect the
value of such Mortgaged Property as security for such
Mortgage Loan;
(xi) Licenses and Authorizations. As of the date of
origination of such Mortgage Loan, to the Mortgage Loan
Seller's best knowledge, after conducting due diligence
consistent with the practice of institutional lenders
generally for properties of the same type as the related
Mortgaged Property, the related Mortgagor was in possession
of all material licenses, permits and other authorizations
necessary and required by all applicable laws with regard to
the Mortgagor's ownership and operation of the related
Mortgaged Property and all such licenses, permits and
authorizations were valid and in full force and effect,
except to the extent the failure to obtain or maintain such
licenses, permits and other authorizations does not
materially impair the current use, operation or value of the
related Mortgaged Property or the rights of a holder of the
related Mortgage Loan;
13
(xii) Property Inspection. The Mortgage Loan Seller
has inspected or caused to be inspected each related
Mortgaged Property within the past 12 months;
(xiii) No Contingent Interest or Negative
Amortization. Such Mortgage Loan does not have a shared
appreciation feature, other contingent interest feature or
negative amortization feature (except with respect to
Mortgage Loan No. 16496, which is the ARD Loan, as to which
negative amortization may be permitted in certain
circumstances);
(xiv) Whole Loan. Such Mortgage Loan is a whole loan
and contains no equity participation by the lender;
(xv) No Usury. The Mortgage Rate (exclusive of any
default interest, late charges or prepayment premiums to the
extent necessary to comply with applicable usury law) of such
Mortgage Loan complied as of the date of origination with, or
was exempt from, all applicable state or federal laws,
regulations and other requirements pertaining to usury; any
and all other requirements of any federal, state or local
laws, including, without limitation, truth-in-lending, real
estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such Mortgage
Loan;
(xvi) Taxes. All taxes, governmental assessments,
water charges, sewer rents or other similar charges with
respect to the related Mortgaged Property that prior to the
Closing Date became due and payable in respect of such
Mortgaged Property have been paid or an escrow of funds in an
amount sufficient to cover such payments has been
established;
(xvii) Escrow Deposits. All escrow deposits and
payments required pursuant to the Mortgage Loan are in the
possession, or under the control, of the Mortgage Loan Seller
or its agent and there are no deficiencies in connection
therewith and all such escrows and deposits have been
conveyed by the Mortgage Loan Seller to the Purchaser and
identified as such with appropriate detail;
(xviii) Hazard Insurance. Each related Mortgaged
Property is insured by a fire and extended perils insurance
policy, issued by an insurer meeting the requirements of the
Pooling and Servicing Agreement, and in an amount not less
than the greater of (a) the replacement cost and (b) the
amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property; each
related Mortgaged Property is also covered by business
interruption insurance (or rent loss insurance) and
comprehensive general liability insurance in amounts
generally required by institutional commercial mortgage
lenders for similar properties; and such other insurance in
such amounts and types as would be required generally by
institutional lenders for Mortgaged Properties of the same
types in similar locations. All premiums on such insurance
policies required to be paid as of the date hereof have been
paid; such insurance policies
14
contain a standard mortgagee clause for the benefit of the
holder of the Mortgage, its successors and assigns; such
insurance policies require prior notice to the mortgagee of
termination or cancellation, and no such notice has been
received; each related Mortgage or loan agreement obligates
the related Mortgagor to maintain all such insurance and, at
such Mortgagor's failure to do so, authorizes the mortgagee
to acquire and maintain such insurance at the Mortgagor's
cost and expense and to seek reimbursement therefor from such
Mortgagor. Each Mortgage provides that any insurance proceeds
in respect of a casualty (other than business interruption/
rental income insurance) and any condemnation awards or
insurance proceeds will be applied either to the repair or
restoration of the Mortgaged Property or the repayment of the
outstanding principal balance of the Mortgage Loan;
(xix) No Default. There is no material monetary
default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note and,
to the Mortgage Loan Seller's best knowledge, no material
non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage or the
related Mortgage Note. To the Mortgage Loan Seller's
knowledge, there is no event (other than payments due but not
yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would
constitute such a material default, breach, violation or
event of acceleration;
(xx) Delinquency. No Monthly Payment on such
Mortgage Loan has been more than 30 days delinquent (without
giving effect to any applicable grace period) from the later
of the date of origination of such Mortgage Loan or, if
applicable, the date of acquisition by the Mortgage Loan
Seller of such Mortgage Loan, through the Cut-Off Date; the
Mortgage Loan Seller has not waived any default, breach,
violation or event of acceleration that was material in
nature and existed under the related Mortgage Loan Documents;
(xxi) Customary Provisions. The related Mortgage
contains customary and enforceable provisions such as to
render the principal rights and remedies of the holder
thereof adequate for the realization against the Mortgaged
Property of the principal benefits of the security intended
to be provided thereby, including realization by judicial or,
if applicable and permitted under local law, non-judicial
foreclosure, subject to the effects of bankruptcy or similar
law affecting the right of creditors and the application of
principles of equity, and there is no exemption available to
the Mortgagor which would interfere with such right to
foreclose;
(xxii) Environmental Matters. A Phase I
environmental report (or an update to an existing Phase I
environmental report) was conducted by a reputable
environmental consultant within 12 months of the origination
of such Mortgage Loan which report (or update) did not
indicate any material existence of any dangerous, toxic or
hazardous pollutants, chemicals, wastes or substances
("Hazardous Materials"), except for those conditions (the
"Existing Conditions") that were remediated prior to the
Cut-Off Date, or for which an operations and
15
maintenance remediation plan is in effect or with respect to
which a hold-back or other escrow of funds not less than the
costs of such remediation as estimated in such environmental
report (or update) has been created to be held by the
Mortgage Loan Seller or its agent until such remediation has
been completed. To the best of the Mortgage Loan Seller's
knowledge (based on the Phase I environmental reports or
updates and a representation of the related Borrower at the
time of origination of each Mortgage Loan and the absence of
any notice to the contrary), except for the Existing
Conditions, each related Mortgaged Property is in material
compliance with all applicable federal, state and local laws
pertaining to environmental hazards, and no notice of
violation of such laws has been issued by any governmental
agency or authority. In each Mortgage, the related Mortgagor
represents and warrants that, except for the Existing
Conditions, it will not use or cause or permit to exist on
the related Mortgaged Property any Hazardous Materials in any
manner that violates federal, state or local laws,
ordinances, regulations, orders or directives or published
policies relating to the use, storage, treatment,
transportation, manufacture, refinement, handling, production
or disposal of Hazardous Materials. In each Mortgage, the
Mortgagor represents and warrants that no Hazardous Materials
exist on the related Mortgaged Property in any manner that
violates federal, state or local laws, ordinances,
regulations, orders or directives relating to hazardous
materials; provided, however, that in certain instances this
representation is limited to the best of the Mortgagor's
knowledge; the related Mortgagor agrees to indemnify, defend
and hold the Mortgage Loan Seller and its successors and
assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses
and claims of any kind whatsoever (including attorney's fees
and costs) paid, incurred or suffered by, or asserted
against, any such party resulting from any inaccuracy in any
representation or warranty or any material breach of any
covenant pertaining to Hazardous Materials given by the
related Mortgagor under the related Mortgage;
(xxiii) Acceleration Provisions. Each related
Mortgage or loan agreement contains provisions for the
acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, (A) without obtaining the written
consent of the Mortgagee, the related Mortgaged Property is
transferred, sold or encumbered in connection with any
additional financing (other than any existing Other Debt
referenced in clause (xliii) below) or (B) without complying
with the requirements of the Mortgage or loan agreement, or
any controlling interest therein, is directly or indirectly
transferred or sold, or in connection with any and each
related Mortgage or loan agreement prohibits the pledge or
encumbrance of the Mortgaged Property (except for matters of
the type described in clause (viii) above) without the
consent of the holder of the Mortgage Loan;
(xxiv) Mortgage. The Mortgage Loan is directly
secured by a Mortgage on a commercial property, multifamily
residential property or manufactured housing community, and
either (1) substantially all of the proceeds of the Mortgage
Loan were used to acquire, improve or protect an interest in
such real property which, as of the origination date, was the
sole security for such Mortgage
16
Loan (unless the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the
Code at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable)
or (2) the fair market value of such real property was at
least equal to 80% of the principal amount of the Mortgage
Loan (a) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was
not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that the
fair market value of the real property interest must first be
reduced by (i) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such
senior lien also secures a Mortgage Loan, in which event the
computation described in clauses (a) and (b) shall be made on
an aggregate basis) and (ii) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event
the computation described in clauses (a) and (b) shall be
made on an aggregate basis);
(xxv) Mortgage Loan Schedule. The Mortgage Loan
Schedule in the Mortgage Loan Purchase and Sale Agreement is
complete and accurate in all material respects as of the
Cut-Off Date;
(xxvi) REMIC Qualification. Each Mortgage Loan
constitutes a "qualified mortgage" within the meaning of
Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860 G-2(f)(2) that treats a
defective obligation as a qualified mortgage, or any
substantially similar successor provision) and each Mortgage
Loan bears interest at a "fixed rate" or at a "variable rate"
within the meaning of Section 860G(a)(1)B of the Code;
(xxvii) Appraisal. The Mortgage File contains an
appraisal of the related Mortgaged Property which appraisal
is signed by a qualified appraiser, who, to the Mortgage Loan
Seller's knowledge, had no interest, direct or indirect, in
the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the
approval or disapproval of the Mortgage Loan, and the
appraisal and appraiser both satisfy the requirements of
Title XI of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated
thereunder, all in effect on the date the Mortgage Loan was
originated;
(xxviii) Encroachments. None of the material
improvements which were included for the purposes of
determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan
lies outside of the boundaries and building restriction lines
of such property (except for (i) de minimis encroachments or
encroachments for which the related title insurance policy
provides affirmative insurance or (ii) Mortgaged Properties
which are legal non-conforming uses), and no improvements on
adjoining properties materially encroach upon such Mortgaged
Property, or the requisite
17
title insurance has been obtained with respect to the
foregoing; and either (x) the title insurance policy obtained
for each related Mortgaged Property contains no exclusion for
lack of access or affirmatively insures a right of access to
a public or (y) to the Mortgage Loan Seller's knowledge,
based on the due diligence consistent with the practice of
institutional lenders generally for properties of the same
type as the related Mortgaged Property (including the review
of a survey), each related Mortgaged property has a right of
access to a public road;
(xxix) Compliance with Law. As of the date of
origination of such Mortgage Loan, and or to the Mortgage
Loan Seller's knowledge, as of the Closing Date, (A) each
Mortgaged Property was in material compliance with all
applicable laws, zoning ordinances (including legal
non-conforming uses), rules, covenants and restrictions
affecting the construction, occupancy, use and operation of
such Mortgaged Property, and (B) all material inspections,
licenses and certificates, including certificates of
occupancy, required by law, ordinance or regulation to be
made or issued with regard to the Mortgaged Property were
issued or made and were in full force and effect, or, in the
case of certificates of occupancy, an opinion of counsel or a
letter from an engineer or architect, or a letter from the
appropriate municipal authority was delivered which provides
that (i) all certificates of occupancy have been issued, or
(ii) no certificates of occupancy are required, or (iii)
there are no violations of existing building codes;
(xxx) Single-Purpose Borrower. Except with respect
to Mortgage Loan Nos. 11839, 12252, 16771 and 16814, the
related Mortgagor is an entity which has represented in
connection with the origination of the Mortgage Loan, or
whose organizational documents provide, that so long as the
Mortgage Loan is outstanding it will be a single-purpose
entity. (For this purpose, "single-purpose entity" shall mean
a person, other than an individual, which does not engage in
any business unrelated to the related Mortgaged Property and
its financing, does not have any assets other than those
related to its interest in such Mortgaged Property or its
financing, or any indebtedness other than as permitted by the
related Mortgage or the other documents in the Mortgage Loan
File, has its own books and records separate and apart from
any other person, and holds itself out as being a legal
entity, separate and apart from any other person);
(xxxi) Underwriting Standards. Each Mortgage Loan
complied, in all material respects, with all of the terms,
conditions and requirements of the Mortgage Loan Seller's
underwriting standards in effect at the time of the
origination or acquisition of such Mortgage Loan, which are
described in the prospectus supplement;
(xxxii) No Insolvency. To the Mortgage Loan Seller's
knowledge, no Mortgagor is a debtor in any state or federal
bankruptcy or insolvency proceeding;
(xxxiii) Interests in Mortgaged Property. Such
Mortgage Loan was originated or acquired by the Mortgage Loan
Seller for sale or securitization. The
18
interest of the related Mortgagor in the related Mortgaged
Property consists of a fee simple and/or leasehold estate in
real property;
(xxxiv) No Defense to Payment. There is no right of
rescission, offset, abatement, diminution, defense or
counterclaim to the Mortgage Loan (including the defense of
usury), nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any rights
thereunder, render the Mortgage Note or the Mortgage
unenforceable (excluding provisions relating to default
interest, yield maintenance charges or prepayment premiums),
or subject to any right of rescission, offset, abatement,
diminution, defense or counterclaim (including the defense of
usury or the violation of any applicable disclosure or
consumer credit laws), except in any such case as enforcement
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of
creditors' rights generally or by general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and no such
right of rescission, offset, abatement, diminution, defense
or counterclaim has been asserted with respect thereto;
(xxxv) Mortgages Secured by Deeds of Trust. In the
case of any Mortgage which is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has
been properly designated and currently so serves and is named
in the deed of trust or has been substituted in accordance
with applicable law, and no fees or expenses are, or will
become, payable to the trustee under the deed of trust,
except in connection with a trustee's sale after default by
the Mortgagor or in connection with the release of the
Mortgaged Property or related security for the Mortgage Loan
following the payment of the Mortgage Loan in full;
(xxxvi) Flood Hazard. The improvements located on
the related Mortgaged Property are either not located in a
federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains,
flood insurance with respect to such improvements, in an
amount equal to the lesser of (a) the outstanding principal
amount of the related Mortgage Loan or (b) the amount
available under the National Flood Insurance Act;
(xxxvii) Leasehold Interests. If the Mortgaged
Property is subject to any leases, the Mortgagor (or in the
case of multiple Mortgagors, one of the parties constituting
the Mortgagor) is the owner and holder of the landlord's
interest under any leases (other than "ground leases") and
the related Mortgage or Assignment of Leases provides for the
appointment of a receiver for rents or allows the mortgagee
to enter into possession to collect rent or provides for
rents to be paid directly to mortgagee in the event of a
default;
(xxxviii) Collateral. Each Mortgage Note is not
secured by any collateral except the lien of the related
Mortgage, the related Assignment of Leases (if any) and any
related security agreement;
19
(xxxix) Cross-Collateralization. Such Mortgage Loan,
if cross-collateralized, is cross-collateralized only with
one or more other Mortgage Loans being transferred to the
Purchaser;
(xl) Origination. The origination (or acquisition,
as the case may be), servicing and collection practices used
by the Mortgage Loan Seller with respect to the Mortgage Loan
have complied in all material respects with all requirements
of relevant federal, state and local law, rules and
regulations (including, without limitation, usury,
truth-in-lending, consumer credit protection, equal credit
opportunity and disclosure) and are consistent with the
servicing standard set forth in the Pooling and Servicing
Agreement;
(xli) No Advance of Funds from Person other than
Mortgagor. To the knowledge of the Mortgage Loan Seller, no
advance of funds has been made after the Cut-Off Date,
directly or indirectly, by any holder of such Mortgage Loan,
nor have any funds been received from any person other than
the related Mortgagor, for or on account of payments due on
the related Mortgage Note or the related Mortgage;
(xlii) UCC Financing Statements. (a) UCC Financing
Statements covering all furniture, fixtures, equipment and
other personal property owned by a Mortgagor and located on
the related Mortgaged Property (i) which are collateral under
the related Mortgage or under a security agreement, chattel
mortgage or equivalent document executed and delivered in
connection with such Mortgage Loan, and (ii) in which a
security interest can be perfected by the filing of UCC
Financing Statements under applicable law have been filed
and/or recorded (or have been sent for filing or recording)
in all UCC filing offices necessary to perfect a valid
security interest in such furniture, fixtures, equipment and
other personal property, and the Mortgages, security
agreements, chattel mortgages or equivalent documents related
to and delivered in connection with the related Mortgage
Loans establish and create a valid and enforceable security
interest on such furniture, fixtures, equipment and other
personal property; and (b) with respect to each Mortgaged
Property improved with a hotel, such UCC Financing
Statements, together with the Mortgages, security agreements,
chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan,
establish and create a valid and enforceable security
interest in the furniture, fixtures and equipment located
thereon and owned by the related Mortgagor, to the extent a
security interest in such furniture, fixtures and equipment
can be perfected by the filing of UCC Financing Statements
under applicable law; except, in each case, as enforceability
may be limited by bankruptcy or other laws affecting
creditor's rights generally or by the application of the
rules of equity, and except that certain provisions of the
Mortgages, security agreements, chattel mortgages or
equivalent documents related to and delivered in connection
with the related Mortgage Loans are or may be unenforceable
in whole or in part under applicable law, but such
unenforceability of such provisions does not render such
documents inadequate for the practical realization of the
rights and benefits intended to be afforded thereby;
20
(xliii) Other Indebtedness of Mortgagor. Except as
set forth below, to the best of the Mortgage Loan Seller's
knowledge, the Mortgagor has no indebtedness for borrowed
money and, except as provided below, the Mortgage Loan
Documents do not provide or permit, without the consent of
the Mortgagee, any indebtedness to encumber the Mortgaged
Property, other than the Mortgage Loan and trade debt
incurred in the ordinary course of business.
(A) The Borrowers with respect to Mortgage
Loans No. 16814, 11839, 12252 and 16771 on the
Mortgage Loan Schedule are entities that are not
single purpose entities and whose related loan
documents do not prevent them from incurring
additional debt on other properties, but do prevent
them from occurring additional debt secured by the
Mortgaged Properties without the consent of the
lender.
(B) The Mortgaged Properties securing
Mortgage Loans No. 11696 and 16393 on the Mortgage
Loan Schedule secure certain additional debt of the
Borrower on a pari passu basis with such Mortgage
Loans.
(C) The Borrowers with respect to Mortgage
Loans No. 17702 and 17820 on the Mortgage Loan
Schedule have incurred additional debt that is not
included in the Trust Fund and that is secured by
the related Mortgaged Property.
(D) The Borrowers with respect to Mortgage
Loans No. 9100, 9529, 9691 and 17820 on the Mortgage
Loan Schedule (or affiliates thereof) have incurred
additional debt that is not included in the Trust
Fund and that is not secured by the related
Mortgaged Property.
(xliv) Ground Leases. No Mortgage Loan is secured in
whole or in part by the interest of a Borrower as lessee
under a ground lease underlying the related Mortgaged
Property unless (i) the Mortgage Loan is also secured by a
first priority lien (subject to the matters described in
clause (viii) above) on the related fee interest, (ii) the
ground lease represents an non-essential portion of the
Mortgaged Property, or (iii) with respect to Mortgage Loan
Nos. 8939, 9691, 12147, 16496 and 17918 the ground lease
satisfies the following criteria:
(A) The ground lease or a memorandum
regarding it has been duly recorded. The ground
lease permits the interest of the lessee to be
encumbered by the related Mortgage and does not
restrict the use of the related Mortgaged Property
by such lessee, its successors or assigns in a
manner that would adversely affect the security
provided by the related Mortgage. There has been no
material change in the terms of such ground lease
since its recordation, except by written
instruments, all of which are included in the
related Mortgage File;
21
(B) The lessor under such ground lease has
agreed in a writing included in the related Mortgage
File that the ground lease may not be amended,
modified, canceled or terminated without the prior
written consent of the mortgagee and that any such
action without such consent is not binding on the
mortgagee, its successors or assigns, except if an
event of default occurs under the ground lease and
notice is provided to the mortgagee and such default
is curable by the mortgagee, but remains uncured
beyond the applicable cure period;
(C) The 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
related mortgagor or the mortgagee of the related
Mortgaged Property upon foreclosure, assignment in
lieu-of-foreclosure or otherwise) that extends not
less than 10 years beyond the stated maturity of the
related Mortgage Loan;
(D) The ground lessee's interest in the
ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with,
the Mortgage, subject to the matters described in
clause (viii) above, and such ground lease does not
provide that it shall be subordinate, and is not
subordinate to (subject to the matters described in
clause (viii) above) any mortgage or other lien or
encumbrance upon the related fee interest;
(E) The ground lease is assignable to the
mortgagee under the leasehold estate without the
consent of the lessor thereunder or such consent has
been obtained;
(F) The ground lease is in full force and
effect and no default has occurred, nor is there any
existing condition which, but for the passage of
time or giving of notice, would result in a default
under the terms of the ground lease;
(G) The ground lease or ancillary agreement
between the lessor and the lessee or separate
agreement between the lessor and the mortgagee
requires the lessor to give notice of any default by
the lessee to the mortgagee. The ground lease or
ancillary agreement further provides that no notice
given is effective against the mortgagee unless a
copy has been given to the mortgagee in a manner
described in the ground lease or such ancillary or
other agreement;
(H) A mortgagee is permitted a reasonable
opportunity (including, where necessary, sufficient
time to gain possession of the interest of the
lessee under the ground lease through legal
proceedings, or to take other action so long as the
mortgagee is proceeding diligently) to cure any
default under the ground lease which is curable
after the receipt of notice of any default before
the lessor may terminate the ground lease. All
rights of the mortgagor under the ground lease and
the related
22
Mortgage (insofar as it relates to the ground lease)
may be exercised by or on behalf of the mortgagee;
(I) The ground lease does not impose any
restrictions on subletting that would be viewed as
commercially unreasonable by an institutional
investor;
(J) Under the terms of the ground lease,
and/or a separate agreement between the related
lessor and the mortgagee, and the related Mortgage;
any related insurance proceeds or condemnation award
(other than in respect of a total or substantially
total loss or taking) will be applied either 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 repair or restoration
progresses, or to the payment of the outstanding
principal balance of the Mortgage Loan, together
with an accrued interest (except in cases where a
different allocation would not typically be viewed
as commercially unreasonable by an institutional
investor, taking into account the relative duration
of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of
such Mortgage Loan); and
(K) Except in the case of Mortgage Loan No.
17918, as to which a condemnation insurance policy
is in place, the proceeds of which are payable to
the Lender in reduction of the debt secured by the
related mortgage, under the terms of the ground
lease, and/or a separate agreement between the
related lessor and the related mortgagee, any
related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or
taking of the related Mortgaged Property will be
applied first to the payment of the outstanding
principal balance of the Mortgage Loan, together
with any accrued interest if such proceeds have not
been used to restore the premises (except in cases
where a different allocation would not typically be
viewed as commercially unreasonable by any
institutional investor, taking into account the
relative duration of the ground lease and the
related Mortgage and the ratio of the market value
of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan). Until the
principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the
ground lease will have the option to terminate or
modify the ground lease without prior written
consent of the mortgagee as a result of any casualty
or partial condemnation, except to provide for an
abatement of rent; and
(L) The terms of the related ground lease
and/or a separate agreement between the lessor and
the mortgagee require the related lessor to enter
into a new lease upon termination of the ground
lease due to the default of the lessee thereunder,
including rejection of the ground lease in a
bankruptcy proceeding;
23
(xlv) Concentration. Except with respect to Mortgage
Loan Nos. 5193, 8939, 11969 and 17187, which are Mortgage
Loans made to affiliated borrowers, and Mortgage Loan Nos.
16462, 16464 and 16393, the Mortgage Loans, together with all
other Mortgage Loans to the same Mortgagor and/or affiliates
of such Mortgagor, do not constitute more than 5% of the
aggregate outstanding principal balance of all Mortgage Loans
transferred by the Mortgage Loan Seller to the Purchaser. For
purposes of the foregoing, an "affiliate" of, or person or
entity "affiliated with", a specified person or entity, is a
person or entity that directly, or indirectly through one or
more intermediaries, controls, is controlled by, or is under
common control with, the specified person or entity;
(xlvi) No Proceedings. As of the date of origination
and, to the best of the Mortgage Loan Seller's knowledge, as
of the Closing Date, there was no pending, or, to the
knowledge of the Mortgage Loan Seller threatened action,
suit, proceeding, arbitration or governmental investigation
against any Mortgagor or the related Mortgaged Property an
adverse outcome of which would materially affect either such
Mortgagor's performance under the related Mortgage Loan
documents or the holders of the Certificates.
(xlvii) Defeasance. Each Mortgage Loan which grants
the related Mortgagor the option to obtain the release of the
lien of the Mortgage on the related Mortgaged Property by
substituting U.S. Treasury securities for such Mortgaged
Property, as collateral for the related Mortgage Notes,
either (i) does not, as a factual matter, permit defeasance
prior to the date such defeasance would be permitted under
the applicable REMIC provisions and (ii) requires that (A)
the replacement collateral consist of U.S. Treasury
securities in an amount sufficient to make all scheduled
payments under the Mortgage Note when due and (B) counsel
provide an opinion that the holder of the Mortgage Loan has a
perfected security interest in such collateral prior to any
other claim or interest and (C) the related Mortgagor pay all
of the reasonable costs and expenses incurred in connection
with the exercise of such options; and
(xlviii) Annual Reports. The related Mortgage Loan
Documents require the related Mortgagor to furnish to the
mortgagee at least annually an operating statement and
(except in the case of the mortgagor-occupied or single
tenant Mortgaged Property or hotels) a rent roll with respect
to the related Mortgaged Property or, in the case of
mortgagor-occupied Mortgaged Property, a financial statement
with respect to the related Mortgagor.
(xlix) SMMEA Qualification. Each Mortgage Loan was
originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or similar
institution which is supervised and examined by a Federal or
State authority, or by a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and
211 of the National Housing Act.
24
(b) The Mortgage Loan Seller hereby represents and warrants
with respect to itself that, as of the Closing Date that:
(i) The Mortgage Loan Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the Mortgage Loan Seller has taken all necessary
corporate action to authorize the execution, delivery and performance
of this Agreement by it, and has the power and authority to execute,
deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and
authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery
of this Agreement by each other party hereto, this Agreement and all
of the obligations of the Mortgage Loan Seller hereunder are the
legal, valid and binding obligations of the Mortgage Loan Seller,
enforceable against the Mortgage Loan Seller in accordance with the
terms of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting
the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Mortgage Loan Seller
will not conflict with any provisions of any law or regulations to
which the Mortgage Loan Seller is subject, or conflict with, result in
a breach of or constitute a default under any of the terms, conditions
or provisions of the certificate of incorporation or the by-laws of
the Mortgage Loan Seller or any indenture, agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or
any order or decree applicable to the Mortgage Loan Seller, or result
in the creation or imposition of any lien on any of the Mortgage Loan
Seller's assets or property, which would materially and adversely
affect the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement; the Mortgage Loan Seller
has obtained any consent, approval, authorization or order of any
court or governmental agency or body required for the execution,
delivery and performance by the Mortgage Loan Seller of this
Agreement;
(iv) There is no action, suit or proceeding pending or, to
the Mortgage Loan Seller's knowledge, threatened against the Mortgage
Loan Seller in any court or by or before any other governmental agency
or instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Mortgage Loan
Seller to carry out the transactions contemplated by this Agreement.
3.3. Remedies for Breach of Certain Representations and
Warranties. (a) It is understood and agreed that the representations and
warranties set forth herein shall survive the sale of the Mortgage Loans to the
Purchaser, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement or
the Pooling and Servicing Agreement, and shall inure to the benefit of the
Purchaser, and the Trustee as the transferee of the Purchaser, notwithstanding
(1) any restrictive or qualified endorsement on any Note, Assignment of
Mortgage or Reassignment of Assignment
25
of Leases, Rents and Profits (2) any termination of this Agreement or (3) the
examination by any Person of, or failure by any Person to examine, any Mortgage
File.
(b) Upon the receipt of notice or discovery by the Mortgage
Loan Seller, the Purchaser or the Trustee that (i) a document required to be
delivered, recorded or filed pursuant to Section 2.4 of this Agreement in
connection with any Mortgage Loan has not been executed or received, has not
been recorded or filed (if required), appears not to be what it purports to be
or has been torn, mutilated or otherwise defaced (such Mortgage Loan, a
"Defective Document Mortgage Loan") or (ii) a breach of any of the foregoing
representations and warranties (other than the representations and warranties
set forth in Sections 3.1(a)) or a default in the performance of any of the
covenants or other obligations of the Mortgage Loan Seller under this Agreement
has occurred (a "Breach") which, in the case of either clause (i) or (ii),
materially and adversely affects the value of any Mortgage Loan or the
interests of the Certificateholders therein, the party discovering (x) that a
Mortgage Loan is a Defective Document Mortgage Loan or (y) the existence of a
Breach (any such Mortgage Loan as described in the preceding clause (x) or so
affected by a Breach as described in clause (y), a "Defective Mortgage Loan")
shall give prompt written notice thereof to the other parties. Within 90 days
of the earlier of its discovery or its receipt of notice of any such Defective
Mortgage Loan, the Mortgage Loan Seller shall at its option either (i) promptly
cure such defect or Breach in all material respects or (ii) repurchase the
Defective Mortgage Loan or Loans at the Repurchase Price for such Mortgage Loan
or Loans. The payment of the Repurchase Price with respect to any Mortgage
Loans repurchased by the Mortgage Loan Seller shall be paid in accordance with
the directions of the owners of such Mortgage Loans. It is understood and
agreed that the obligations of the Mortgage Loan Seller set forth in this
Section 3.3(b) to cure or repurchase a Defective Mortgage Loan constitute the
sole remedies available to the Purchaser and its successors and assigns
respecting a breach of the representations and warranties of the Mortgage Loan
Seller set forth in Section 3.2(a). Upon any such repurchase of a Mortgage Loan
by the Mortgage Loan Seller, the Purchaser shall execute and deliver such
instruments of transfer or assignment presented to it by the Mortgage Loan
Seller, in each case without recourse, as shall be necessary to vest in the
Mortgage Loan Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any
insurance policy with respect thereto), and shall deliver the related Mortgage
File to the Mortgage Loan Seller or its designee after receipt of the related
Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b), no
provision of this Agreement shall be interpreted as limiting (or otherwise be
deemed to limit) the Purchaser's right to pursue any remedies it may have under
this Agreement, in equity or at law, in connection with any breach by the
Mortgage Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the
assignment by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders, of the
representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to cure or repurchase Defective Mortgage Loans pursuant to
this Section. The Trustee or its designee may enforce such obligation as
provided in Section 5.3 hereof.
26
3.4. Opinions of Counsel. The Mortgage Loan Seller hereby
covenants to the Purchaser to, simultaneously with the execution hereof,
deliver or cause to be delivered to the Purchaser (a) opinions of counsel as to
various corporate matters in form satisfactory to the Purchaser (it being
agreed that the opinion shall expressly provide that the Trustee and the Fiscal
Agent shall be entitled to rely on such opinions); and (b) opinions of counsel
for the Mortgage Loan Seller, in form acceptable to the Purchaser, its counsel,
and each Rating Agency, as to such matters as shall be required for the
assignment of the ratings of the Certificates required by the Placement Agency
Agreement and under the Underwriting Agreement (it being agreed that such
opinions or appropriate reliance letters shall expressly provide that the
Trustee and the Fiscal Agent shall be entitled to rely on such opinions).
3.5. Placement; Underwriting. The Mortgage Loan Seller hereby
agrees to furnish any and all information, documents, certificates, letters or
opinions with respect to the Mortgage Loans reasonably requested by the
Purchaser in order to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Placement
Agency Agreement and the Underwriting Agreement at or prior to the Closing
Date.
3.6. Further Assurances; Securitization Cooperation. The
Mortgage Loan Seller agrees to execute and deliver such instruments and take
such actions as the Purchaser may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement
and to effectuate the securitization of the Mortgage Loan pursuant to the
Pooling and Servicing Agreement and to carry out its obligations under the
Pooling and Servicing Agreement.
[End of Article III]
27
ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of
the Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to
be performed by it at or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or
both, would constitute a default under this Agreement, and the Purchaser shall
have received a certificate to that effect signed by an authorized officer of
the Mortgage Loan Seller.
(b) 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 and in form and substance satisfactory to the
Purchaser, the Underwriter and their respective counsel, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage
File, which Mortgage File shall be delivered to and held by the
Trustee on behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as
Exhibit B;
(iii) an officer's certificate from the Mortgage Loan Seller
dated as of the Closing Date, in the form attached hereto as Exhibit
B;
(iv) an opinion of Xxxxxx X. Xxxxxxxxx, vice president and
counsel to the Mortgage Loan Seller, substantially in the form
attached hereto as Exhibit C;
(v) the Pooling and Servicing Agreement and all documents
required to be delivered pursuant thereto;
(vi) such other documents, certificates and opinions as may
be necessary to secure for the Certificates the following ratings from
Xxxxx'x Investors Services, Inc. ("Moody's") and Standard & Poor's
Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc.
("S&P"): for the Class A-1 Certificates, a "Aaa" rating from Moody's
and a "AAA" rating from S&P; for the Class A-2 Certificates, a "Aaa"
rating from Moody's and a "AAA" rating from S&P; for the Class B
Certificates, a "Aa2" rating from Moody's and a "AA" rating from S&P;
for the Class C Certificates, a "A2" rating from Moody's and a "A"
rating from S&P; for the Class D Certificates, a "Baa2" rating from
Moody's; for the Class E Certificates a "Baa3" rating from Moody's;
for the Class F Certificates, a "BB+" rating from S&P; for the Class G
Certificates, a "Ba2" rating from Moody's; for the Class H
Certificates a "Ba3" rating from Moody's; for the Class I
Certificates, a "B2" rating from Moody's; for the Class J Certificates
a "B3" rating from
28
Moody's; and for the Class X Certificates, a "Aaa" rating from Moody's
and a "AAAr" rating from S&P.
(vii) a letter from the independent accounting firm Deloitte
& Touche in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans as set forth in the
Prospectus and certain information regarding the Certificates as set
forth in the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The
obligations of the Mortgage Loan Seller under this Agreement shall be subject
to the satisfaction, on the Closing Date, to the Purchaser's compliance with
all of the Purchaser's obligations under this Agreement.
[End of Article IV]
29
ARTICLE V.
MISCELLANEOUS
5.1. Costs. The Purchaser shall pay all expenses incidental
to the performance of its obligations under this Agreement, including without
limitation (a) any recording fees or fees for title policy endorsements and
continuations, (b) the expenses of preparing, printing and reproducing (I) the
Memorandum with respect to the Privately Placed Certificates and (II) the
Prospectus Supplement with respect to the Publicly Offered Certificates, the
Purchase Agreement and the Pooling and Servicing Agreement and the
Certificates, (c) the cost of delivering the Privately Placed Certificates to
the office of the Placement Agent or the Purchaser, as applicable, insured to
the satisfaction of the Placement Agent or the Purchaser, as applicable and (d)
the cost of delivering the Publicly Offered Certificates to the office of the
Underwriter.
5.2. Notices. All communications hereunder shall be in
writing and effective only upon receipt and, if sent to the Purchaser, will be
mailed, delivered or transmitted by facsimile and confirmed to it at Bear
Xxxxxxx Commercial Mortgage Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, with a copy to Xxxxxx Xxxxxxxxx, Esq.,
telecopy number: (000) 000-0000; or, if sent to the Mortgage Loan Seller, will
be mailed, delivered or transmitted by facsimile and confirmed to it at Bear,
Xxxxxxx Funding, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxxxx, with a copy to Xxxxxx Xxxxxxxxx, Esq., telecopy number: (212)
270-2619.
5.3. Trustee Beneficiary. The representations, warranties and
agreements made by the Mortgage Loan Seller in this Agreement are made for the
benefit of, and may be enforced by or on behalf of, the Trustee and the Holders
of Certificates to the same extent that the Purchaser has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein, and all such
representations and warranties shall survive delivery of the Mortgage Files to
the Trustee until the termination of the Pooling and Servicing Agreement.
5.4. Successors and Assigns. 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, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
(without regard to conflicts of laws principles), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
5.6. Modifications. (a) Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
(b) This Agreement may not be changed in any manner which
would have a material adverse effect on Holders of Certificates without the
prior written consent of the Trustee. The Trustee shall be protected in
consenting to any such change to the same extent provided in the Pooling and
Servicing Agreement.
30
(c) 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.
5.7. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then, to the extent permitted by applicable law, such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement.
5.8. Confirmation of Intent. It is the express intent of the
parties hereto that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Mortgage Loan Seller of all the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans.
It is, further, not the intention of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Mortgage Loan Seller to secure a debt or
other obligation of the Mortgage Loan Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Mortgage Loan Seller then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Mortgage Loan Seller to the Purchaser of 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 of the Mortgage
Loans in accordance with the terms thereof and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property; (c) the possession by the Purchaser or any successor thereto
of the related Notes 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" for purposes of perfecting the security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction; and (d)
notifications to Persons holding such property, and acknowledgments, receipts
or confirmations from Persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser or any
successor thereto for the purpose of perfecting such security interest under
applicable law. Any assignment of the interest of the Purchaser pursuant to any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby.
[Signatures Appear on Next Page]
31
IN WITNESS WHEREOF, the Purchaser, the Mortgage Loan Seller
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 SECURITIES INC.
By:
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
BEAR, XXXXXXX FUNDING, INC.
By:
--------------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: Vice President
S-1
EXHIBIT A
Mortgage Loan Schedule
----------------------
A-1
EXHIBIT B
OFFICER'S CERTIFICATE OF BEAR, XXXXXXX FUNDING, INC.
In connection with the sale, assignment and transfer of
certain mortgage loans (collectively, the "Mortgage Loans") by Bear, Xxxxxxx
Funding, Inc. (the "Mortgage Loan Seller") to Bear Xxxxxxx Commercial Mortgage
Securities Inc. (the "Purchaser") pursuant to the Mortgage Loan Sale Agreement
dated as of February 1, 1999 (the "Mortgage Loan Sale Agreement") between the
Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Sale 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.
(b) The Mortgage Loan Seller has complied with the terms of the
Mortgage Loan Sale Agreement and satisfied all the conditions on its
part required under the Mortgage Loan Sale Agreement to be performed
or satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the 1st day of February
1999.
BEAR, XXXXXXX FUNDING, INC.
By:
--------------------------
Name:
Title:
B-1
EXHIBIT C
[Letterhead of Bear, Xxxxxxx Funding, Inc.]
As of February 1, 1999
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of February 1, 1999
between Bear Xxxxxxx Commercial Mortgage Securities Inc. and Bear,
Xxxxxxx Funding, Inc. (the "Agreement")
Ladies and Gentlemen:
I am the vice president and counsel to Bear, Xxxxxxx Funding,
Inc., a Delaware corporation (the "Company"), and, in such capacity, I am
familiar with the affairs of the Company.
I am providing this opinion in connection with the sale by
the Company to Bear Xxxxxxx Commercial Mortgage Securities Inc. of various
commercial and multi-family mortgage loans. This opinion is furnished to you
pursuant to Section 4.1(b)(iv) of the Mortgage Loan Purchase and Sale Agreement
(the "Agreement"). Terms used herein, but not otherwise defined herein, shall
have the meanings ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity
to original documents of copies of documents supplied to me. As to certain
matters of fact relevant to the opinions hereinafter compressed, I have relied
solely upon statements and certificates of the officers of the Company and
others. I have also assumed (other than with respect to the Company) that all
documents, agreements and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, agreements and instruments,
and that such documents, agreements and instruments are valid, binding and
enforceable obligations of such parties.
I am admitted to the Bar of the State of New York, and I
express no opinion as to any laws other than the laws of the United States, the
State of New York and the General Corporation Law of the State of Delaware.
Based on the foregoing, I am of the opinion that:
C-1
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified as a foreign corporation in good standing in the
State of New York, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Agreement and all the transactions contemplated thereby, including but
not limited to, the power and authority to sell, assign and retransfer
the Mortgage Loans in accordance with the Agreement and the Company
has taken all necessary action to authorize the execution, delivery
and performance of the Agreement by it, and the Agreement has been
duly authorized, executed and delivered by it.
2. The Agreement and all of the obligations of the Company
under the Agreement are valid, legal and binding obligations of the
Company enforceable against the Company in accordance with the terms
of the Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and
by public policy considerations, statutes or court decisions to the
effect that such public policy considerations statutes or court
decisions limit the enforceability of the provisions of the Agreement
relating to the rights to indemnity and contribution.
3. The execution and delivery of the Agreement by the Company
and the performance of its obligations under the Agreement will not
conflict with any provision of any law or regulation to which the
Company is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of any of the Company's organizational documents or, to my knowledge,
any agreement or instrument to which the Company is a party or by
which it is bound, or any order or decree applicable to the Company,
result in the creation or imposition of any lien on any of the
Company's assets or property, in each case which would materially and
adversely affect the ability of the Company to carry out the
transactions contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in
any court or by or before any other government agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Company to carry
out the transactions contemplated by the Agreement.
5. To my knowledge, the Company is not in default with
respect to any order or decree of any court or any order, regulation
or demand of any federal, state, municipal or governmental agency,
which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of
the Company or its properties or might have consequences that would
materially and adversely affect its performance under the Agreement.
6. To my knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Company or compliance by
the Company with the Agreement or the
C-2
consummation of the transactions contemplated by the Agreement, other
than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the
addressees hereof in connection with the transaction referred to herein. This
letter may not be relied upon, used, quoted, circulated or otherwise referred
to by any other person or for any other purpose without my prior written
approval. This opinion is being given as of February 1, 1999 and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
Xxxxxx X. Xxxxxxxxx, Xx.
C-3
SCHEDULE A
Bear, Xxxxxxx Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear Xxxxxxx Commercial Mortgage Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's Ratings Services
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investor Services
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle National Bank
Analytics Department
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
ABN Amro Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
C-4
