EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"), is
dated and effective as of March 8, 2007, between Xxxxx Fargo Bank, National
Association ("Xxxxx Fargo Bank"), as seller (in such capacity, together with its
successors and permitted assigns hereunder, the "Mortgage Loan Seller"), and
Bear Xxxxxxx Commercial Mortgage Securities Inc. ("BSCMSI"), as purchaser (in
such capacity, together with its successors and permitted assigns hereunder, the
"Purchaser").
RECITALS
Xxxxx Fargo Bank desires to sell, assign, transfer, set over and
otherwise convey to BSCMSI, without recourse, representation or warranty, other
than as set forth herein, and BSCMSI desires to purchase, subject to the terms
and conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the primary assets of
which will be a segregated pool of multifamily and commercial mortgage loans
that includes the Mortgage Loans and certain other commercial and multifamily
mortgage loans (collectively, the "Trust Mortgage Loans"). Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Xxxxx'x
Investors Service, Inc. and Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc. (together, the "Rating Agencies"). Certain
classes of the Certificates (the "Registered Certificates") will be registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Trust
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement to be dated as of March 1, 2007 (the "Pooling and Servicing
Agreement"), among BSCMSI, as depositor (in such capacity, the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such capacity, a
"Master Servicer") and as loan specific special servicer, Xxxxx Fargo Bank,
National Association, as a master servicer (in such capacity, a "Master
Servicer"), as certificate administrator (in such capacity, the "Certificate
Administrator") and as tax administrator (in such capacity, the "Tax
Administrator"), ARCap Servicing, Inc., as a special servicer (a "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Pooling and Servicing Agreement as
in full force and effect on the Closing Date (as defined in Section 1 hereof).
It is anticipated that BSCMSI will transfer the Mortgage Loans to the Trust
contemporaneously with its purchase of the Mortgage Loans hereunder.
BSCMSI intends to sell the Registered Certificates to Bear, Xxxxxxx &
Co. Inc. ("BSC") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"; and
together with BSC in such capacity, the "Underwriters"), pursuant to an
underwriting agreement, dated the date hereof (the "Underwriting Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the remaining
Certificates (the "Non-Registered Certificates") to BSC and Xxxxxx Xxxxxxx
(together in such capacities, the "Initial Purchasers") pursuant to a
certificate purchase
agreement, dated the date hereof (the "Certificate Purchase Agreement"), among
BSCMSI and the Initial Purchasers. The Registered Certificates are more fully
described in the prospectus dated September 13, 2006 (the "Base Prospectus"),
and the supplement to the Base Prospectus dated March 8, 2007 (the "Prospectus
Supplement"; and, together with the Base Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The Non-Registered
Certificates are more fully described in the private placement memorandum dated
the date hereof (the "Memorandum"), as it may be amended or supplemented at any
time hereafter.
Xxxxx Fargo Bank will indemnify the Depositor, the Underwriters the
Initial Purchasers and certain related parties with respect to the disclosure
regarding the Mortgage Loans that is contained in the Prospectus, the Memorandum
and certain other disclosure documents and offering materials relating to the
Certificates, pursuant to an indemnification agreement, dated as of the date
hereof (the "Indemnification Agreement"), among Xxxxx Fargo Bank, the Depositor,
the Underwriters and the Initial Purchasers.
As used herein, "Regulation AB" means Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. Sections 229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and interpretation
as have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(January 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller agrees to
sell, assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, representation or warranty, other than as set forth herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms
and conditions set forth herein, the Mortgage Loans. The purchase and sale of
the Mortgage Loans shall take place on March 29, 2007 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). As of
the Cut-off Date, the Mortgage Loans will have an aggregate principal balance,
after application of all payments of principal due on the Mortgage Loans on or
before such date, whether or not received, of $368,493,136, subject to a
variance of plus or minus 5%. The purchase price for the Mortgage Loans shall
equal the amount set forth as such purchase price in a letter dated as of March
29, 2007, between the parties to this Agreement, which purchase price excludes
accrued interest and applicable deal expenses. The Purchaser shall pay such
purchase price, plus interest accrued on the Mortgage Loans from the Cut-off
Date to the Closing Date and any applicable deal expenses, to the Mortgage Loan
Seller on the Closing Date by wire transfer in immediately available funds or by
such other method as shall be mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and the other conditions to the
Mortgage Loan Seller's obligations set forth herein, the Mortgage Loan Seller
does hereby sell, assign, transfer, set over and otherwise convey to the
Purchaser, without recourse, representation or warranty, other than
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as set forth herein, all of the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans and all documents included in the
related Mortgage Files and Servicing Files. Such assignment includes all
scheduled payments of principal and interest under and proceeds of the Mortgage
Loans received after their respective Cut-off Dates (other than scheduled
payments of interest and principal due on or before their respective Cut-off
Dates, which shall belong and be promptly remitted to the Mortgage Loan Seller)
together with all documents delivered or caused to be delivered hereunder with
respect to such Mortgage Loans by the Mortgage Loan Seller (including all
documents included in the related Mortgage Files and Servicing Files and any
related Additional Collateral). The Purchaser shall be entitled to receive all
scheduled payments of principal and interest due on the Mortgage Loans after
their respective Cut-off Dates, and all other recoveries of principal and
interest collected thereon after their respective Cut-off Dates (other than
scheduled payments of principal and interest due on the Mortgage Loans on or
before their respective Cut-off Dates and collected after such respective
Cut-off Dates, which shall belong to the Mortgage Loan Seller). In no event,
however, shall such conveyance and assignment constitute or be construed as an
assumption by the Purchaser of, in the case of any Mortgage Loan that is part of
a Mortgage Loan Group, any obligation or liability that is imposed only on the
initial holder of such Mortgage Loan under the terms of the related Mortgage
Loan Group Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Mortgage Loan Seller shall not take any
action inconsistent with the Purchaser's ownership of the Mortgage Loans. Except
for actions that are the express responsibility of another party hereunder or
under the Pooling and Servicing Agreement, and further except for actions that
the Mortgage Loan Seller is expressly permitted to complete subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is intended by the parties hereto to constitute a
sale by the Mortgage Loan Seller of all the Mortgage Loan Seller's right, title
and interest in and to such Mortgage Loans and such other related rights and
property by the Mortgage Loan Seller to the Purchaser. Furthermore, it is not
intended that such conveyance be a pledge of security for a loan. If such
conveyance is determined to be a pledge of security for a loan, however, then:
(i) this Agreement shall constitute a security agreement under applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to the Purchaser a
first priority security interest in all of the Mortgage Loan Seller's right,
title and interest in and to the Mortgage Loans and all amounts payable to the
holder(s) of the Mortgage Loans in accordance with the terms thereof (other than
scheduled payments of interest and principal due and payable on such Mortgage
Loans on or prior to their respective Cut-Off Dates or, in the case of a
Replacement Pooled Mortgage Loan, on or prior to the related date of
substitution); (iii) the assignment by BSCMSI to the Trustee of its interests in
the Mortgage Loans as contemplated by Section 15 hereof shall be deemed to be an
assignment of any security interest created hereunder; (iv) the possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes with respect
to the Mortgage Loans subject hereto from time to time and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or person designated by such secured party for the purpose of
perfecting such security
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interest under applicable law; and (v) notifications to, and acknowledgments,
receipts or confirmations from, Persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the Purchaser
for the purpose of perfecting such security interest under applicable law. The
Mortgage Loan Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be reasonably necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's assignment pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver
to and deposit with, or cause to be delivered to and deposited with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date, the Mortgage
Note for each Mortgage Loan so assigned, endorsed to the Trustee as specified in
clause (i) of the definition of "Mortgage File", and, on or before the date that
is 45 days following the Closing Date, the remainder of the Mortgage File for
each Mortgage Loan and any Additional Collateral (other than original Letters of
Credit and Reserve Funds, which shall be transferred to the Trustee or to the
applicable Master Servicer) for each Mortgage Loan. Notwithstanding the
preceding sentence, if the Mortgage Loan Seller cannot so deliver, or cause to
be delivered, as to any Mortgage Loan (exclusive of any Mortgage Loan that
constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the original or a copy
of any of the documents and/or instruments referred to in clauses (ii), (iii),
(vii) and (ix)(A) of the definition of "Mortgage File", with evidence of
recording or filing (if applicable, and as the case may be) thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, as the case
may be, then (subject to the obligation of the Mortgage Loan Seller to
nonetheless (1) from time to time make or cause to be made reasonably diligent
efforts to obtain such document or instrument (with such evidence) if it is not
returned within a reasonable period after the date when it was transmitted for
recording and (2) deliver such document or instrument to the Trustee or a
Custodian appointed thereby (if such document or instrument is not otherwise
returned to the Trustee or such Custodian) promptly upon the Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or instrument,
certified by the Mortgage Loan Seller or title agent as being a copy of the
document deposited for recording or filing and (in the case of such clause (ii))
accompanied by an Officer's Certificate of the Mortgage Loan Seller or a
statement from the title agent to the effect that such original Mortgage has
been sent to the appropriate public recording official for recordation, has been
delivered to the Trustee on or before the date that is 45 days following the
Closing Date, the delivery requirements of this subsection shall be deemed to
have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, and if the Mortgage
Loan Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the definition of
"Mortgage File", because such document or instrument has been delivered for
recording or filing, as the case may be, then (subject to the obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be
made reasonably diligent efforts to obtain such document or instrument (with
such evidence) if it is not returned within a reasonable period after the date
when it was transmitted for recording and (2) deliver such document or
instrument to the Trustee or a
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Custodian appointed thereby (if such document or instrument is not otherwise
returned to the Trustee or such Custodian) promptly upon the Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or instrument,
certified by the Mortgage Loan Seller, a title agent or a recording or filing
agent as being a copy of the document deposited for recording or filing and
accompanied by an Officer's Certificate of the Mortgage Loan Seller or a
statement from the title agent that such document or instrument has been sent to
the appropriate public recording official for recordation (except that such
certification shall not be required if the Trustee is responsible for
recordation of such document or instrument under the Pooling and Servicing
Agreement and the Mortgage Loan Seller has delivered the original unrecorded
document or instrument to the Trustee on or before the date that is 45 days
following the Closing Date), has been delivered to the Trustee on or before the
date that is 45 days following the Closing Date, the delivery requirements of
this subsection shall be deemed to have been satisfied as to such missing item,
and such missing item shall be deemed to have been included in the related
Mortgage File. In addition, with respect to each Mortgage Loan (exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage Loan) under
which any Additional Collateral is in the form of a Letter of Credit as of the
Closing Date, the Mortgage Loan Seller shall cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Trustee the Mortgage Loan Seller's rights as the
beneficiary thereof and drawing party thereunder. Furthermore, with respect to
each Mortgage Loan, if any, as to which there exists a secured creditor impaired
property insurance policy or pollution limited liability environmental
impairment policy covering the related Mortgaged Property, the Mortgage Loan
Seller shall cause such policy, within a reasonable period following the Closing
Date, to inure to the benefit of the Trustee for the benefit of the
Certificateholders (if and to the extent that it does not by its terms
automatically inure to the holder of such Mortgage Loan). For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
(d) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or in the case of a Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03 of the Pooling and
Servicing Agreement, after the related date of substitution) and (ii) the date
on which all recording information necessary to complete the subject document is
received by the Mortgage Loan Seller, the Mortgage Loan Seller shall complete
(to the extent necessary), and shall submit for recording or filing, as the case
may be, including via electronic means, if appropriate, in or with the
appropriate office for real property records or UCC Financing Statements, as
applicable, each assignment of Mortgage and assignment of Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment of Leases that
has been recorded in the name of MERS or its designee) in favor of the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in the Pooling
and Servicing Agreement and each assignment of UCC Financing Statement (except
with respect to any UCC Financing Statement that has been recorded in the name
of MERS or its designee) in favor of the Trustee referred to in clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing Agreement.
Each such assignment shall reflect that it should be returned by the public
recording office to the Trustee following recording, and each such assignment of
UCC Financing Statement shall reflect that the file copy thereof or an
appropriate receipt therefor, as applicable, should be returned to the Trustee
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or
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assignment of Assignment of Leases the Trustee shall obtain therefrom a copy of
the recorded original. If the Mortgage Loan Seller receives written notice that
any assignment or other instrument of transfer with respect to the Mortgage
Loans is lost or returned unrecorded or unfiled, as the case may be, because of
a defect therein, the Mortgage Loan Seller shall prepare or cause the
preparation of a substitute therefor or cure such defect, as the case may be.
The Mortgage Loan Seller shall be responsible for all reasonable out-of-pocket
costs and expenses associated with recording and/or filing any and all
assignments and other instruments of transfer with respect to the Mortgage Loans
that are required to be recorded or filed, as the case may be, under the Pooling
and Servicing Agreement; provided that the Mortgage Loan Seller shall not be
responsible for actually recording or filing any such assignments or other
instruments of transfer or for costs and expenses that the related Borrowers
have agreed to pay. With respect to each Mortgage, Assignment of Leases and UCC
Financing Statement that has been recorded in the name of MERS or its designee
(if any), the Mortgage Loan Seller shall take all actions as are necessary to
cause the Trustee to be shown as the owner of such Mortgage, Assignment of
Leases or UCC Financing Statement on the records of MERS.
(e) In connection with the Mortgage Loan Seller's assignment pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall deliver
to and deposit with, or cause to be delivered to and deposited with, the
applicable Master Servicer, on or before the date that is 45 days after the
Closing Date, in the case of the items in clause (i) below, and 20 days after
the Closing Date, in the case of the items in clause (ii) below, the following
items (except to the extent that any of the following items are to be retained
by a Primary Servicer or Sub-Servicer that will continue to act on behalf of the
applicable Master Servicer as contemplated by the Pooling and Servicing
Agreement and a Primary Servicing Agreement or Sub-Servicing Agreement and
except to the extent that any of the following items relate to any Mortgage Loan
that constitutes a Non-Trust-Serviced Pooled Mortgage Loan): (i) originals or
copies of all financial statements, appraisals, environmental/engineering
reports, transaction screens, seismic assessment reports, leases, rent rolls,
insurance policies and certificates, major space leases, legal opinions and
tenant estoppels and any other relevant documents relating to the origination
and servicing of any Mortgage Loan that are reasonably necessary for the ongoing
administration and/or servicing of the applicable Mortgage Loan in the
possession or under the control of the Mortgage Loan Seller that relate to the
Mortgage Loans transferred by it to the Purchaser and, to the extent that any
original documents are not required to be a part of a Mortgage File for any such
Mortgage Loan, originals or copies of all documents, certificates and opinions
in the possession or under the control of the Mortgage Loan Seller that were
delivered by or on behalf of the related Borrowers in connection with the
origination of such Mortgage Loans (provided that the Mortgage Loan Seller shall
not be required to deliver any attorney-client privileged communication, draft
documents or any documents or materials prepared by it or its Affiliates for
internal uses, including without limitation, credit committee briefs or
memoranda and other internal approval documents); and (ii) all unapplied Reserve
Funds and Escrow Payments in the possession or under the control of the Mortgage
Loan Seller that relate to the Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller shall report its transfer
of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the
Mortgage Loans to the Purchaser in exchange for the consideration specified in
Section 1 hereof. In connection with the foregoing, the Mortgage Loan Seller
shall cause all of its records to reflect such transfer as a sale (as opposed to
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a secured loan) and to reflect that the Mortgage Loans are no longer property of
the Mortgage Loan Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Mortgage Loan Seller shall, within 15 days of its discovery or
receipt of notice of any error on the Mortgage Loan Schedule, amend such
Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the case
may be, an amended Mortgage Loan Schedule; provided that this sentence shall not
be construed to relieve the Mortgage Loan Seller of any liability for any
related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with any examination
of the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted or has failed
to conduct any partial or complete examination of any of the Mortgage Files for,
and/or any of such other documents and records relating to, the Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Mortgage Loan Seller's representations and
warranties made pursuant to Section 4, except as expressly set forth in Section
5.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(and, in connection with any replacement of a Defective Mortgage Loan (as
defined in Section 4(d) hereof) with one or more Replacement Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a) hereof, as of
the related date of substitution), to and for the benefit of the Purchaser, each
of the representations and warranties set forth in Exhibit B-1. The Purchaser
hereby makes, as of the Closing Date, to and for the benefit of the Mortgage
Loan Seller, each of the representations and warranties set forth in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing Date (or
as of such other date specifically provided in the particular representation or
warranty), to and for the benefit of the Purchaser, each of the representations
and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as of the
Closing Date, to and for the benefit of BSCMSI only, that the Mortgage Loan
Seller has not dealt with any broker, investment banker, agent or other person
(other than the Depositor, the Underwriters and the Initial Purchasers) who may
be entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and warrants that, with
respect to the Mortgage Loans and the Mortgage Loan Seller's role as
"originator" (or the role of any third party as "originator" of any Mortgage
Loan for which the Mortgage Loan Seller was not the originator) and "sponsor" in
connection with the issuance of the Registered Certificates, the information
regarding the Mortgage Loans, the related Borrowers, the related Mortgaged
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Properties and/or the Mortgage Loan Seller contained in the Prospectus
Supplement complies in all material respects with the applicable disclosure
requirements of Regulation AB.
(e) For so long as the Trust is subject to the reporting requirements
of the Exchange Act, the Mortgage Loan Seller hereby agrees to provide the
Purchaser (or with respect to any Serviced Non-Pooled Pari Passu Companion Loan
that is deposited into an Other Securitization, the depositor in such Other
Securitization) and the Certificate Administrator with any Additional Form 10-D
Disclosure and any Additional Form 10-K Disclosure opposite which "Pooled
Mortgage Loan Seller" is set forth on Schedule IX and Schedule X to the Pooling
and Servicing Agreement within the time periods and in accordance with the
provisions set forth in the Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be deemed to
make to and for the benefit of the Purchaser, as of the date of substitution,
with respect to any replacement mortgage loan (a "Replacement Mortgage Loan")
that is substituted for a Defective Mortgage Loan, by the Mortgage Loan Seller
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C to this Agreement. From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes. A "Defective Mortgage
Loan" is any Mortgage Loan as to which there is an unremedied Material Breach or
Material Document Defect.
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the Mortgage Loan
Seller of notice, of any Material Breach or Material Document Defect with
respect to any Mortgage Loan (or, if such Material Breach or Material Document
Defect, as the case may be, related to whether such Mortgage Loan is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the
related date of substitution), was a Qualified Mortgage, and provided that the
Mortgage Loan Seller discovered or received prompt written notice thereof,
within 90 days after any earlier discovery by the Mortgage Loan Seller or any
party to the Pooling and Servicing Agreement of such Material Breach or Material
Document Defect, as the case may be) (such 90-day period, in any case, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that such Material
Document Defect or Material Breach, as the case may be, does not relate to
whether the affected Mortgage Loan is or, as of the Closing Date (or, in the
case of a Replacement Mortgage Loan, as of the related date of substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect or Material
Breach, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, during the applicable Initial
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Resolution Period, and (iv) that such Mortgage Loan Seller anticipates that such
Material Document Defect or Material Breach, as the case may be, will be cured
within an additional 90-day period (such additional 90-day period, the
"Resolution Extension Period"), then the Mortgage Loan Seller shall have an
additional period equal to any such applicable Resolution Extension Period to
complete such correction or cure (or, upon failure to complete such correction
or cure, to repurchase the affected Mortgage Loan); and provided, further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated above (but,
in any event, no later than such repurchase would have to have been completed),
such Mortgage Loan Seller shall be permitted, during the three-month period
following the Startup Day for the REMIC Pool that holds the affected Mortgage
Loan (or during the two-year period following such Startup Day if the affected
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying Substitute
Mortgage Loans and to pay a cash amount equal to the applicable Substitution
Shortfall Amount. The parties hereto agree that delivery by the Trustee (or a
Custodian on its behalf) of a certification or schedule of exceptions to the
Mortgage Loan Seller pursuant to the Pooling and Servicing Agreement shall not
in and of itself constitute delivery of notice of any Material Document Defect
or knowledge of the Mortgage Loan Seller of any Material Document Defect
therein. If any Mortgage Loan is to be repurchased or replaced as contemplated
by this subsection, the Purchaser or its designee shall be entitled to designate
the account to which funds in the amount of the applicable Purchase Price or
Substitution Shortfall Amount (as the case may be) are to be wired. Any such
repurchase or replacement of a Mortgage Loan shall be on a whole loan, servicing
released basis. Notwithstanding this subsection, the absence from the Mortgage
File, (i) on the Closing Date of the Mortgage Note (or a lost note affidavit and
indemnity with a copy of the Mortgage Note) and (ii) by the first anniversary of
the Closing Date of originals or copies of the following documents (without the
presence of any factor that reasonably mitigates such absence, non-conformity or
irregularity) or of any Specially Designated Mortgage Loan Document shall be
conclusively presumed to be a Material Document Defect and shall obligate the
Mortgage Loan Seller to cure such Material Document Defect, or, failing that,
repurchase the related Mortgage Loan or REO Mortgage Loan, all in accordance
with the procedures set forth herein: (a) the Mortgage and any separate
Assignment of Leases as described by clauses (ii) and (iii) of the definition of
"Mortgage File"; (b) the title insurance policy as described in clause (viii) of
the definition of "Mortgage File" (or, if the policy has not yet been issued, an
original or copy of a written commitment "marked-up" at the closing of such
Mortgage Loan, interim binder or the pro forma title insurance policy, in each
case evidencing a binding commitment to issue such policy); or (c) the
assignment of Mortgage (and any separate Assignment of Leases) as described by
clause (iv) of the definition of "Mortgage File". For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect or breach does
not constitute a Material Document Defect or
9
Material Breach, as the case may be, as to the other Mortgage Loan(s) that are a
part of such Cross-Collateralized Group (the "Other Crossed Loans") (without
regard to this paragraph), then the applicable Document Defect or Breach (as the
case may be) shall be deemed to constitute a Material Document Defect or
Material Breach (as the case may be) as to each such Other Crossed Loan for
purposes of the above provisions, and the Mortgage Loan Seller shall be
obligated to repurchase or replace each such Other Crossed Loan in accordance
with the provisions above unless, in the case of such Breach or Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or causes
to be delivered to the Trustee an Opinion of Counsel to the effect that its
repurchase of only those Mortgage Loans as to which a Material Breach has
actually occurred without regard to the provisions of this paragraph (the
"Affected Loan(s)") and the operation of the remaining provisions of this
Section 5(a) will not result in an Adverse REMIC Event with respect to any
REMIC Pool, or an Adverse Grantor Event with respect to either Grantor
Trust Pool, under the Pooling and Servicing Agreement; and
(B) both of the following conditions would be satisfied if the
Mortgage Loan Seller were to repurchase or replace only the Affected Loans
and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x below the debt service coverage ratio
for the Cross-Collateralized Group (including the Affected Loan(s))
set forth in Appendix B to the Prospectus Supplement, (B) the debt
service coverage ratio for the Cross-Collateralized Group (including
the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including the
Affected Loan(s)) at the time of repurchase or replacement, and (C)
75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in which case the
Mortgage Loan Seller shall) cause to be delivered, to the applicable Master
Servicer an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of the Mortgage Loan Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
10
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the Purchaser agree
to forbear from enforcing any remedies against the other's Primary Collateral
but each is permitted to exercise remedies against the Primary Collateral
securing its respective Mortgage Loans, including with respect to the Trustee,
the Primary Collateral securing the Affected Loan(s) still held by the Trustee,
so long as such exercise does not impair the ability of the Mortgage Loan Seller
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one such party would impair the ability of the other such party to
exercise its remedies with respect to the Primary Collateral securing the
Affected Loan or the Other Crossed Loans, as the case may be, held by the other
such party, then both parties shall forbear from exercising such remedies unless
and until the Mortgage Loan Documents evidencing and securing the relevant
Mortgage Loans can be modified in a manner that complies with this Agreement to
remove the threat of impairment as a result of the exercise of remedies. Any
reserve or other cash collateral or letters of credit securing any of the
Cross-Collateralized Loans shall be allocated between the Mortgage Loans in
accordance with the Mortgage Loan Documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. All other terms of the
Mortgage Loans shall remain in full force and effect, without any modification
thereof. The Borrowers set forth on Schedule V to the Pooling and Servicing
Agreement are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Borrower's consent.
All costs and expenses incurred by the Trustee and the applicable
Master Servicer with respect to any Cross-Collateralized Group pursuant to the
preceding paragraph shall be included in the calculation of Purchase Price for
the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as contemplated by
this Section 5, upon direction by the applicable Master Servicer, the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage File and a
certification to the effect that such Replacement Mortgage Loan satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan as contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself a Replacement
Mortgage Loan, in which case, absent a cure of the relevant Material Breach or
Material Document Defect, the affected Mortgage Loan will be required to be
repurchased as contemplated hereby. Monthly Payments due with respect to each
Replacement Mortgage Loan (if any) after the related date of substitution, and
Monthly Payments due with respect to each corresponding Deleted Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to the related date
of substitution, shall be part of the Trust Fund. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date of
substitution, shall not be part of the Trust Fund and are to be remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly following
receipt.
11
If any Mortgage Loan is to be repurchased or replaced by the Mortgage
Loan Seller as contemplated by this Section 5, upon direction by the applicable
Master Servicer, the Mortgage Loan Seller shall amend the Mortgage Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if applicable, the
substitution of the related Replacement Mortgage Loan(s) and deliver or cause
the delivery of such amended Mortgage Loan Schedule to the parties to the
Pooling and Servicing Agreement. Upon any substitution of one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan, such Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms
of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by the related Mortgage Loan Seller as contemplated by
this Section 5 has been deposited in the account designated therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and further, if
applicable, upon receipt by the Purchaser (or the Trustee or a Custodian
appointed thereby) of the Mortgage File for each Replacement Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together with any
certifications and/or opinions required pursuant to this Section 5 to be
delivered by the Mortgage Loan Seller, the Purchaser (or the Trustee) shall (i)
release or cause the release of the Mortgage File and any Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the Deleted Mortgage
Loan to the Mortgage Loan Seller or its designee and (ii) execute and deliver
such instruments of release, transfer and/or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
Mortgage Loan Seller or its designee the ownership of the Deleted Mortgage Loan,
and the Purchaser (or the applicable Master Servicer on its behalf) shall notify
the affected Borrowers of the transfers of the Deleted Mortgage Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such repurchase or
substitution by the Mortgage Loan Seller, each of the applicable Master Servicer
and the Special Servicer (or other servicing agent for the Purchaser) shall
deliver to the Mortgage Loan Seller or its designee any portion of the related
Servicing File, together with any Escrow Payments, Reserve Funds and Additional
Collateral, held by or on behalf of such Master Servicer or the Special Servicer
(or other servicing agent for the Purchaser), as the case may be, with respect
to the Deleted Mortgage Loan, in each case at the expense of the Mortgage Loan
Seller.
(d) It is understood and agreed that the obligations of the Mortgage
Loan Seller set forth in this Section 5 to cure a Material Breach or a Material
Document Defect, or to repurchase or replace the related Defective Mortgage
Loan(s), constitute the sole remedies available to the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage Loan.
Notwithstanding the foregoing, to the extent (but only to the extent)
that (A) the Mortgage Loan Seller represents in the representation and warranty
set forth in the final sentence of paragraph 23 or the representation and
warranty set forth in the final sentence of paragraph 29 of Exhibit C attached
hereto that the Borrower under a Mortgage Loan is required to pay, or that the
lender is entitled to charge the Borrower for, a cost or expense described in
such sentence, (B) such representation and warranty is untrue with respect to
such cost or expense, (C) the Purchaser actually incurs such cost or such
expense, (D) the Purchaser (or a Person acting on
12
behalf of the Purchaser) exercises efforts consistent with the Servicing
Standard and the related Mortgage Loan Documents to collect such cost or expense
from the Borrower and (E) the Borrower does not pay such cost or expense at or
before the conclusion of the efforts described in the preceding clause (D), then
the Mortgage Loan Seller hereby covenants and agrees (it being the intention of
the parties that all, and not less than all, of the conditions described in the
preceding clauses (A), (B), (C), (D) and (E) shall be precedent to such covenant
and agreement) to pay such cost or expense within 90 days following a direction
by the Purchaser (or a Person acting on behalf of the Purchaser) to do so. Also
notwithstanding the foregoing, the remedy described in the immediately preceding
sentence shall constitute the sole remedy available to the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders with
respect to any breach of any representation described in clause (A) of the
immediately preceding sentence, the Mortgage Loan Seller shall not otherwise
have any obligation to cure such a breach and the Mortgage Loan Seller shall not
have any obligation to repurchase or replace the affected Mortgage Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Austin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be true and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects the obligations of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller, shall be duly
executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Purchaser or its designee, all documents, funds and other assets
required to be delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and any
other documents and records relating to, the Mortgage Loans performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Mortgage Loan Seller shall have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed by it after the
Closing Date;
13
(vi) The Mortgage Loan Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase price
for the Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Purchaser or its designee shall have
received all of the following Closing Documents, in such forms as are agreed
upon and acceptable to the Purchaser, the Underwriters, the Initial Purchasers
and the Rating Agencies (collectively, the "Interested Parties"), and upon which
the Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the Mortgage
Loan Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Mortgage Loan Seller, in his or her individual capacity, and dated the
Closing Date, and upon which the Interested Parties may rely, attaching
thereto as exhibits (A) the resolutions of the board of directors of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's entering into
the transactions contemplated by this Agreement and the Indemnification
Agreement, and (B) the organizational documents of the Mortgage Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage Loan
Seller issued by the Comptroller of the Currency of the United States not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v) A Certificate of the Mortgage Loan Seller substantially in the
form of Exhibit D-2 hereto, executed by an executive officer of the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated the
Closing Date, and upon which the Interested Parties may rely;
(vi) The written opinion of in-house counsel for the Mortgage Loan
Seller, dated the Closing Date and addressed to the Interested Parties and
the Trustee, which opinion shall be substantially in the form of Exhibit
D-3A hereto (with such additions, deletions or modifications as may be
required by either Rating Agency);
(vii) A written opinion of Sidley Xxxxxx Xxxxx & Xxxx LLP, special
counsel for the Mortgage Loan Seller, dated the Closing Date and addressed
to the Interested
14
Parties and the Trustee, which opinion shall be substantially in the form
of Exhibit D-3B hereto (with such additions, deletions or modifications as
may be required by either Rating Agency);
(viii) A letter from Xxxxxxx Xxxxx LLP, special counsel for the
Mortgage Loan Seller, dated the Closing Date and addressed to BSCMSI and
the Underwriters, which letter shall be substantially in the form of
Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel for the Mortgage
Loan Seller to the Rating Agencies in connection with the transactions
contemplated by this Agreement, including, but not limited to, with respect
to the characterization of the transfer of the Mortgage Loans hereunder as
a true sale, with each such opinion to be addressed to the other Interested
Parties and the Trustee or accompanied by a letter signed by such counsel
stating that the other Interested Parties and the Trustee may rely on such
opinion as if it were addressed to them as of date thereof;
(x) One or more comfort letters from Deloitte & Touche LLP, certified
public accountants, dated the date of any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively, and
addressed to, and in form and substance acceptable to, the Interested
Parties (other than the Rating Agencies), stating in effect that, using the
assumptions and methodology used by BSCMSI or the Underwriters, as
applicable, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Mortgage Loans
set forth in any preliminary Prospectus Supplement, the Prospectus
Supplement and the Memorandum, compared the results of their calculations
to the corresponding items in any preliminary Prospectus Supplement, the
Prospectus Supplement and the Memorandum, respectively, and found each such
number and percentage set forth in any preliminary Prospectus Supplement,
the Prospectus Supplement and the Memorandum, respectively, to be in
agreement with the results of such calculations; and
(xi) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 8. Costs. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated pursuant to the terms of a settlement statement
dated the Closing Date.
SECTION 9. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed, by registered mail, postage prepaid, by overnight mail
or courier service, or transmitted by facsimile and confirmed by similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: J. Xxxxxxxxxxx Xxxxxxx, Senior Managing
Director, Commercial Mortgage Department (with copies to the attention of Xxxxxx
X. Xxxxxxxxx, Xx., Managing Director, Legal Department), or such other address
as may be designated by the Purchaser to the Mortgage Loan Seller in writing,
or, if to the Mortgage Loan Seller, addressed to the Mortgage Loan Seller at 000
Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
Xxxxxxxxx (with copies to the attention of
15
Xxxxxx X. Xxxxxxx, Esq., Xxxxx Fargo Bank, National Association, 000 Xxxxxx
Xxxxxx, 0xx Xxxxx, XXX X0000-000, San Francisco, California 94107), or such
other address as may be designated by the Mortgage Loan Seller to the Purchaser
in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
together constitute but one and the same instrument. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder. Notwithstanding any contrary provision of this Agreement or the
Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Mortgage Loan Seller, without
the consent of the Mortgage Loan Seller.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Mortgage Loan Seller delivered pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Mortgage Loan Seller to BSCMSI and by BSCMSI to the Trust,
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction; Waiver of Trial by
Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO
BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING
16
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM;
(IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY
APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR
ARISING OUT OF THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and take such
further actions as any other party hereto may, from time to time, reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of the
Mortgage Loan Seller under this Agreement shall not be assigned by the Mortgage
Loan Seller without the prior written consent of the Purchaser, except that any
person into which the Mortgage Loan Seller may be merged or consolidated, or any
person resulting from any merger, conversion or consolidation to which the
Mortgage Loan Seller is a party, or any person succeeding to all or
substantially all of the business of the Mortgage Loan Seller, shall be the
successor to the Mortgage Loan Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto,
BSCMSI is expressly authorized to assign its rights under this Agreement, in
whole or in part, to the Trustee for the benefit of the registered holders and
beneficial owners of the Certificates. To the extent of any such assignment, the
Trustee, for the benefit of the registered holders and beneficial owners of the
Certificates, shall be the Purchaser hereunder. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Mortgage Loan Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall provide the
Purchaser with such information about itself, the Mortgage Loans and the
underwriting and servicing procedures applicable to the Mortgage Loans as is (i)
customary in commercial mortgage loan securitization transactions, (ii) required
by a Rating Agency or a governmental agency or body or (iii) reasonably
requested by the Purchaser for use in a public or private disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized, if identified as such on the Mortgage Loan Schedule.
For purposes of reference, the Mortgaged Property that relates or corresponds to
any of the Mortgage Loans referred to in this Section 17 shall be the property
identified in the Mortgage Loan Schedule as corresponding thereto. The
provisions of this Agreement, including, without limitation, each of the
representations and warranties set forth in Exhibit C hereto and each of the
capitalized terms used herein but defined in the Pooling and Servicing
Agreement, shall be interpreted in a manner consistent with this Section 17. In
17
addition, if there exists with respect to any Cross-Collateralized Group only
one original of any document referred to in the definition of "Mortgage File" in
the Pooling and Servicing Agreement and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Xxxxxxxxxxx Xxxxxxx
------------------------------------
Name: J. Xxxxxxxxxxx Xxxxxxx
Title: Vice President
WFB MLPA
EXHIBIT A
SCHEDULE OF XXXXX FARGO BANK POOLED MORTGAGE LOANS
Ex. A-1
ID CMSA LOAN NO. CMSA PROPERTY NO. SELLER LOAN NUMBER PROPERTY NAME LOAN GROUP
-----------------------------------------------------------------------------------------------------------------------------
22 22 22-001 310904197 Desert Gardens Apartments 2
25 25 25-001 310905398 Charlotte Marriott SouthPark 1
34 34 34-001 610905699 One Corporate Center I and III 1
38 38 38-001 310905131 Xxxx Xxx Xxxxxxx Xxxxxx - Xxxxxxx 0
39 39 39-001 310905555 Brook Gardens MHC 2
44 44 44-001 610905562 The Concourse Shopping Center 1
46 46 46-001 310905413 0000 Xxxxxxx Xxxx 1
48 48 310904665 Northwood Oaks and Providence Plaza Retail Portfolio 1
48-a 48-001 310904665A Northwood Oaks
48-b 48-002 310904665B Providence Plaza
49 49 49-001 310905509 Riverwalk Marketplace 1
51 51 51-001 310904654 Timber Ridge Apartments 2
64 64 64-001 310905399 Courtyard Novato Marin - Sonoma 1
73 73 73-001 310905074 Xxxxxxx Xxx & Xxxxxx xx Xxxxx Xxxx 0
84 84 84-001 310905234 The Bristol Hotel 1
96 96 96-001 310905191 Comfort Inn - Rehoboth Beach 1
98 98 98-001 310905298 Festival Apartments 2
100 100 100-001 310905123 Fremont Court 1
106 106 106-001 310905503 Container Store Vienna 1
107 107 107-001 310905401 Xxxxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx Xxxx
Professional Building 1
112 112 112-001 310905316 Xxxxx Xxxx & Xxxxx Xxxxxx Xxxxxxxxxx 0
000 000 114-001 310905483 Xxxxx Xxx & Xxxxxx Xxxxxxxxxx 0
000 000 117-001 310905376 A-American Beaumont 1
124 124 124-001 410905423 A-American Sylmar 1
125 125 125-001 310904386 Xxxxx Xxxxx MHC 2
129 129 129-001 620905367 000 Xxxxx Xxxxxx 1
132 132 132-001 410904183 Security SS 1
142 142 142-001 410905502 Walgreens--Keokuk, Iowa 1
144 144 144-001 310904388 Summit Park MHC 2
145 145 410905328 Dollar General II (Pool 4) 1
145-a 145-001 410905328A Madison
145-b 145-002 410905328B Leeds
145-c 145-003 410905328C Talladega
145-d 145-004 410905328D Moundville
147 147 147-001 410905017 Countryside Village 2
148 148 148-001 410905541 Center Stage at Lumberton 1
149 149 149-001 410905528 2829 - 0000 X. Xxxxxxxx Xxxx 1
151 151 151-001 620905225 Casual Cartage - Northeast 1
153 153 153-001 410905237 World Business Center 1
154 154 154-001 410904913 0000 - 0000 Xxxx Xxxxxx 1
156 156 156-001 410904986 Xxxxxxxxx Shopping Center 1
158 158 158-001 410905176 000 Xxxx Xxxxxx - Mixed Use 1
162 162 162-001 410905109 Penn Records 1
164 164 164-001 410905016 XxXxxxx Xxxxxxx XXX 0
000 000 165-001 410905140 Xxxxxx Xxxxx 0
166 166 166-001 410905317 Urban Outfitters - Ann Arbor, MI 1
167 167 167-001 310905402 AmericInn of Mankato 1
168 168 410905329 Dollar General II (Pool 5) 1
168-a 168-001 410905329A Houston
168-b 168-002 410905329B Katy
168-c 168-003 410905329C Edcouch
168-d 168-004 410905329D San Antonio (China Grove)
169 169 169-001 410905474 Tech Industrial 1
172 172 172-001 410905179 University Retail Center 1
173 173 173-001 410904903 Parkridge Apartments 2
174 174 174-001 410905175 Xxxxxxx Xxxx Xxxxxx 0
000 000 175-001 620905224 Casual Cartage - Southwest 1
176 176 410905325 Dollar General II (Pool 1) 1
176-a 176-001 410905325A Converse
176-b 176-002 410905325B Harlingen
176-c 176-003 410905325C Rio Grande City
176-d 176-004 410905325D Hico
179 179 179-001 410905115 Infinity Building 1
180 180 180-001 410905174 FedEx Express - Traverse City 1
181 181 181-001 410905356 Xxxxxx Xxxx Xxxxx 0
184 184 184-001 410904589 Rite Aid - Orem 1
186 186 186-001 620905299 Houston All Weather Storage 1
189 189 189-001 620905249 Town Centre Plaza 1
190 190 410905326 Dollar General II (Pool 2) 1
190-a 190-001 410905326A San Antonio (Xxxxxxx)
190-b 190-002 410905326B San Antonio (Shaenfield)
190-c 190-003 410905326C San Antonio (Hwy 281)
193 193 193-001 410904661 Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxx 0
000 000 194-001 410905318 Xxxxxxx Access Storage 1
195 195 410905330 Dollar General II (Pool 6) 1
195-a 195-001 410905330A Rio Hondo
195-b 195-002 410905330B Penitas
195-c 195-003 410905330C Xxxxxx
196 196 196-001 410905133 The Sports Authority 1
197 197 197-001 620905052 Grayhawk Office Building 1
198 198 198-001 410905265 Terrace Pointe 2
199 199 199-001 410905235 0000 Xxxxxx Xxxxxx Medical Building 1
201 201 201-001 410905280 Thanksgiving Point 1
204 204 930905347 Church's Chicken RG Portfolio 1
204-a 204-001 930905347A Church's Chicken Xxxx 000- Xxxxxxx, XX
204-b 204-002 930905347B Church's Chicken Xxxx 000- Xxxxxxxxxx, XX
205 205 930905344 Church's Chicken TA Portfolio 1
205-a 205-001 930905344A Church's Chicken Xxxx 0000- Xxxxxxxx, XX
000-x 205-002 930905344B Church's Chicken Xxxx 000- Xxxxxxx, XX
CUT-OFF DATE
ID ADDRESS CITY STATE ZIP CODE ORIGINAL BALANCE BALANCE
--------------------------------------------------------------------------------------------------------------------------------
22 13517 & 00000 Xxxx Xxxxxxxx Xxx Xxxxxxxx XX 00000 25,944,849 25,891,579
25 0000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 22,000,000 22,000,000
34 7300 and 0000 Xxxxx Xxxxxxxxx Xxxxx XX 00000 17,720,000 17,720,000
38 475 - 000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx XX 00000 17,500,000 17,500,000
39 00 X. Xxxxxx Xxxxx Xxxxxxx XX 00000 17,200,000 17,200,000
44 815, 819, 820 & 000 Xxxx Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 16,100,000 16,100,000
46 0000 Xxxxxxx Xxxx Xxxxx Xxxxxx XX 00000 15,150,000 15,150,000
48 Various Various FL Various 14,300,000 14,300,000
48-a 0000 X XxXxxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 8,900,000 8,900,000
48-b 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 5,400,000 5,400,000
49 0000 Xxxxx Xxxxxx Xxxx Xxxxxx XX 00000 14,280,000 14,260,049
51 0000 Xxxxx Xxxxxx Xxxxx Xxxx Xxx Xxxxx XX 00000 13,500,000 13,500,000
64 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX 00000 10,000,000 10,000,000
73 000 Xxxx Xxx Xxxx Xxxx. Xxxxxxx XX 00000 9,000,000 8,960,932
84 0000 0xx Xxxxxx Xxx Xxxxx XX 00000 7,500,000 7,475,739
96 00000 Xxxxxxx 0 Xxxxxxxx Xxxxx XX 00000 6,700,000 6,680,215
98 000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 6,500,000 6,500,000
100 0000-0000 Xxxxxxx Xxxxxx N and 000-000 X. 00xx Xxxxxx Xxxxxxx XX 00000 6,300,000 6,281,145
106 0000 Xxxxxxxx Xxxx Xxxxxx XX 00000 6,000,000 5,991,845
107 000 Xxxxx Xxxxxxxxxx Xxx and 000 X 00xx Xx Xxxxxxxx XX 00000 6,000,000 5,986,817
112 000 X 00xx Xx., 000 X 00xx Xx., 000 X 00xx Xx Xxxxx Xxxxx XX 00000 5,700,000 5,682,178
114 0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 5,360,000 5,360,000
117 0000 X. 0xx Xxxxxx Xxxxxxxx XX 00000 5,250,000 5,240,469
124 00000 Xxxxxxxx Xxxx. Xxxxxx XX 00000 4,750,000 4,741,402
125 0000 Xxxxxxx Xx Xxx Xxxx XX 00000 4,600,000 4,600,000
129 000 Xxxxx Xxxxxx Xxxx XX 00000 4,400,000 4,390,395
132 0000 Xxxx Xxxxxx Xxxxx Xxxxxx XX 00000 4,170,000 4,143,755
142 0000 Xxxx Xxxxxx Xxxxxx XX 00000 3,750,000 3,750,000
144 000 Xxxxxx Xxxx Xx Xxxxx XX 00000 3,580,000 3,580,000
145 Various Various AL Various 3,547,000 3,542,258
145-a 0000 Xx Xxxxxxx Xxxx Xxxxxxx XX 00000 2,208,420 2,205,467
145-b 0000 Xxxxxxx Xx Xxxxx XX 00000 637,160 636,308
145-c 000 Xxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000 382,510 381,999
145-d 00000 Xxx 00 Xxxxx Xxxxxxxxxx XX 00000 318,910 318,484
147 000 Xxxxx Xxxx Xxxxxxx Xxxxx XX 00000 3,485,000 3,471,187
148 0000-0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 3,400,000 3,400,000
149 2829 - 0000 X. Xxxxxxxx Xxxx Xxx Xxxxxxx XX 00000 3,400,000 3,395,623
151 0000 Xx. Xxx Xxxxxx Xx Xxxx Xxxxx XX 00000 3,360,000 3,360,000
153 000 Xxxxxx Xxxxxxx Xxxxxxxxxx XX 00000 3,300,000 3,289,934
154 2700 - 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 3,250,000 3,250,000
156 0000 X XX Xxxxxxx 00 Xxxxxxxxx XX 00000 3,175,000 3,161,928
158 000 Xxxx Xxxxxx Xxxxxxxxxx XX 00000 3,150,000 3,142,863
162 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxx Xxx XX 00000 3,000,000 2,991,073
164 0000 Xxxx Xxxxx Xxxx 0 XxXxxxx XX 00000 2,960,000 2,948,402
165 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 2,950,000 2,941,809
166 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxx XX 00000 2,850,000 2,850,000
167 000 Xxxxxxx Xxxx Xxxxxxx XX 00000 2,850,000 2,841,163
000 Xxxxxxx Xxxxxxx XX Various 2,828,000 2,824,219
168-a 00000 X. Xxxx Xxx Xx Xxxxxxx XX 00000 753,515 752,508
168-b 00000 Xxxxx Xx Xxxx XX 00000 739,300 738,312
168-c 0000 X. Xxxxx Xxxx Xxx Xxxxxxx XX 00000 688,480 687,560
168-d 0000 XX Xxx 00 X. Xxx Xxxxxxx XX 00000 646,705 645,840
169 000 Xxxxxxxxxx Xxx Xxxx XX 00000 2,750,000 2,750,000
172 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx XX 00000 2,700,000 2,691,510
173 70 & 00 Xxxxxxxxx Xxxxx Xxx Xxxxxxxxx XX 00000 2,700,000 2,687,234
174 00000 Xxxxxxx Xxxx Xxx Xxxxxxx XX 00000 2,650,000 2,650,000
175 0000 Xxxx Xx Xxxx Xxxxx XX 00000 2,640,000 2,640,000
176 Various Various TX Various 2,640,000 2,636,470
176-a 0000 X. Xxxx 0000 Xxxxx Xxxxxxxx XX 00000 725,733 724,763
176-b 0000 X. Xxxxxxxx 00 Xxxxxxxxx XX 00000 693,920 692,992
176-c 000 X. XX 0000 Xxx Xxxxxx Xxxx XX 00000 675,325 674,422
176-d 000 Xxxxx Xxxxxx Xxxx XX 00000 545,022 544,293
179 0000 Xxxx Xxxx Xxxx Xxxxxxx XX 00000 2,560,000 2,552,101
180 0000 Xxxxxxxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000 2,520,000 2,512,254
181 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 2,500,000 2,494,352
184 000 Xxxxx Xxxxx Xxxxxx Xxxx XX 00000 2,430,000 2,423,001
186 00000 Xxxxxxxxxxx Xxxxx Xxxxxxx XX 00000 2,250,000 2,250,000
189 0000-0000 Xxxx Xxxxxx Xxxxx Xxxxx XX 00000 2,170,000 2,163,355
000 Xxxxxxx Xxx Xxxxxxx XX Various 2,112,000 2,109,176
190-a 0000 Xxxxxxx Xx Xxx Xxxxxxx XX 00000 739,560 738,571
190-b 00000 Xxxxxxxxxx Xx Xxx Xxxxxxx XX 00000 687,526 686,607
190-c 00000 X. X.X. Xxx 000 Xxxxx Xxx Xxxxxxx XX 00000 684,914 683,998
193 00000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxx XX 00000 2,100,000 2,091,517
194 0000 X. Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 2,025,000 2,014,597
195 Various Various TX Various 1,980,000 1,977,353
195-a 000 X. Xxxxxxxx Xxxxxx Xxx Xxxxx XX 00000 711,994 711,042
195-b 000 Xxx Xxxx Xx Xxxxxxx XX 00000 711,830 710,878
195-c 000 X. 0xx Xxxxxx Xxxxxx XX 00000 556,176 555,432
196 0000 Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxxx XX 00000 1,800,000 1,792,054
197 0000 X. Xxxxxxxx Xxxx Xxxxxxx Xxxxxxxxxx XX 00000 1,700,000 1,694,970
198 0000 00xx Xxxxxx XX Xxxxx XX 00000 1,624,000 1,620,379
199 0000 Xxxxxx Xxxxxx Xxx Xxxx Xxxxxx XX 00000 1,570,000 1,565,373
201 0000 Xxxx Xxxxx Xxxx Xxxx XX 00000 1,200,000 1,185,008
000 Xxxxxxx Xxxxxxx XX Various 850,000 846,664
204-a 0000 Xxx Xxxx Xxxxxx Xxxxxxx XX 00000 470,000 468,155
204-b 000 Xxxxxx Xxxxxx Xxxx Xx. Xxxxx Xxxxxxxxxx XX 00000 380,000 378,508
205 Various Various Various Various 750,000 748,791
205-a 0000 Xxx Xxxxxxxxx Xxxx Xxxxxxxx XX 00000 375,000 374,395
205-b 0000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 375,000 374,395
P&I MONTHLY DEBT IO MONTHLY INTEREST ACCRUAL ORIGINAL TERM TO
ID SERVICE DEBT SERVICE MORTGAGE RATE BASIS ARD LOAN (Y/N) MATURITY DATE OR ARD MATURITY OR ARD (MOS.)
------------------------------------------------------------------------------------------------------------------------------------
22 160,845 NAP 6.31500% Actual/360 No 01/01/17 120
25 131,336 110,784 5.96000% Actual/360 No 01/01/17 120
34 105,785 89,232 5.96000% Actual/360 No 03/01/12 60
38 NAP 88,420 5.98000% Actual/360 No 12/01/16 120
39 NAP 82,573 5.68200% Actual/360 No 02/01/17 120
44 95,083 79,714 5.86000% Actual/360 No 03/01/17 120
46 88,604 73,858 5.77000% Actual/360 No 02/01/17 120
48 85,460 72,131 5.97000% Actual/360 No 11/01/16 120
48-a
48-b
49 81,260 NAP 5.52000% Actual/360 No 02/01/17 120
51 78,782 65,586 5.75000% Actual/360 No 02/01/17 120
64 58,612 48,920 5.79000% Actual/360 No 01/01/17 120
73 58,042 NAP 6.01000% Actual/360 No 12/01/16 120
84 43,056 NAP 5.60000% Actual/360 No 12/01/16 120
96 40,515 NAP 6.08000% Actual/360 No 12/01/16 120
98 38,015 31,688 5.77000% Actual/360 No 12/01/16 120
100 37,812 NAP 6.01000% Actual/360 No 12/01/16 120
106 35,129 NAP 5.78000% Actual/360 Yes 02/01/12 60
107 35,588 NAP 5.90000% Actual/360 No 01/01/17 120
112 33,372 NAP 5.78000% Actual/360 No 12/01/16 120
114 31,450 NAP 5.80000% Actual/360 No 03/01/17 120
117 33,092 NAP 5.77000% Actual/360 No 02/01/14 84
124 30,026 NAP 5.80000% Actual/360 No 02/01/14 84
125 28,263 24,213 6.23000% Actual/360 No 12/01/16 120
129 26,211 NAP 5.94000% Actual/360 No 01/01/17 120
132 25,866 NAP 6.32000% Actual/360 No 08/01/16 120
142 22,243 18,694 5.90000% Actual/360 No 02/01/17 120
144 21,996 18,844 6.23000% Actual/360 No 12/01/16 120
145 21,129 NAP 5.94000% Actual/360 No 02/01/17 120
145-a
145-b
145-c
145-d
147 21,029 NAP 6.06000% Actual/360 No 11/01/16 120
148 20,015 16,748 5.83000% Actual/360 No 01/01/17 120
149 21,089 NAP 6.32000% Actual/360 No 02/01/14 84
151 19,694 16,437 5.79000% Actual/360 No 12/01/16 120
153 19,595 NAP 5.91000% Actual/360 No 12/01/16 120
154 19,007 15,844 5.77000% Actual/360 No 12/01/16 120
156 18,751 NAP 5.86000% Actual/360 No 11/01/16 120
158 18,307 NAP 5.71200% Actual/360 No 01/01/17 120
162 18,064 NAP 6.04000% Actual/360 No 12/01/16 120
164 17,976 NAP 6.12000% Actual/360 No 11/01/16 120
165 18,452 NAP 6.40000% Actual/360 No 12/01/16 120
166 16,886 14,183 5.89000% Actual/360 No 01/01/17 120
167 18,189 NAP 5.90000% Actual/360 No 01/01/17 120
168 16,846 NAP 5.94000% Actual/360 No 02/01/17 120
168-a
168-b
168-c
168-d
169 NAP 13,081 5.63000% Actual/360 No 02/01/17 120
172 15,756 NAP 5.75000% Actual/360 No 12/01/16 120
173 16,414 NAP 6.13000% Actual/360 No 10/01/16 120
174 15,566 13,009 5.81000% Actual/360 No 12/01/16 120
175 15,473 12,915 5.79000% Actual/360 No 12/01/16 120
176 15,726 NAP 5.94000% Actual/360 No 02/01/17 120
176-a
176-b
176-c
176-d
179 15,102 NAP 5.85000% Actual/360 No 12/01/16 120
180 14,899 NAP 5.87000% Actual/360 Yes 12/01/16 120
181 14,558 NAP 5.73000% Actual/360 No 01/01/17 120
184 14,899 NAP 6.21000% Actual/360 No 12/01/16 120
186 13,331 11,197 5.89000% Actual/360 No 01/01/17 120
189 12,857 NAP 5.89000% Actual/360 No 12/01/16 120
190 12,581 NAP 5.94000% Actual/360 No 02/01/17 120
190-a
190-b
190-c
193 12,537 NAP 5.96000% Actual/360 No 11/01/16 120
194 13,460 NAP 5.93000% Actual/360 No 12/01/16 120
195 11,795 NAP 5.94000% Actual/360 No 02/01/17 120
195-a
195-b
195-c
196 11,488 NAP 5.90000% Actual/360 No 12/01/16 120
197 10,269 NAP 6.07000% Actual/360 No 12/01/16 120
198 9,539 NAP 5.81000% Actual/360 No 01/01/17 120
199 9,504 NAP 6.09000% Actual/360 No 12/01/13 84
201 13,232 NAP 5.85000% Actual/360 No 01/01/17 120
204 5,825 NAP 6.66000% Actual/360 No 12/01/16 120
204-a
204-b
205 5,339 NAP 7.08000% Actual/360 No 02/01/17 120
205-a
205-b
ORIGINAL REMAINING
STATED REMAINING TERM AMORTIZATION AMORTIZATION CROSSED WITH CROSSED LOAN
ID TO MATURITY OR ARD (MOS.) TERM (MOS.) TERM (MOS.) OTHER LOANS ID PREPAYMENT PROVISIONS (# OF PAYMENTS)
-------------------------------------------------------------------------------------------------------------------------------
22 118 360 358 LO(35)/Defeasance(81)/Open(4)
25 118 360 360 LO(26)/Flex(90)/Open(4)
34 60 360 360 LO(34)/Flex(22)/Open(4)
38 117 0 0 LO(35)/Defeasance(81)/Open(4)
39 119 0 0 LO(35)/Defeasance(81)/Open(4)
44 120 360 360 LO(35)/Defeasance(81)/Open(4)
46 119 360 360 LO(35)/Defeasance(83)/Open(2)
48 116 360 360 LO(35)/Defeasance(82)/Open(3)
48-a
48-b
49 119 360 359 LO(25)/Flex(91)/Open(4)
51 119 360 360 LO(25)/Flex(91)/Open(4)
64 118 360 360 LO(26)/Flex(90)/Open(4)
73 117 300 297 LO(27)/Defeasance(89)/Open(4)
84 117 360 357 LO(35)/Defeasance(81)/Open(4)
96 117 360 357 LO(35)/Defeasance(83)/Open(2)
98 117 360 360 LO(35)/Defeasance(81)/Open(4)
100 117 360 357 LO(35)/Defeasance(81)/Open(4)
106 59 360 359 GRTR1% or YM(58)/Open(2)
107 118 360 358 LO(35)/Defeasance(81)/Open(4)
112 117 360 357 LO(35)/Defeasance(81)/Open(4)
114 120 360 360 LO(35)/Defeasance(83)/Open(2)
117 83 300 299 LO(25)/Flex(55)/Open(4)
124 83 300 299 LO(35)/Flex(45)/Open(4)
125 117 360 360 LO(35)/Defeasance(81)/Open(4)
129 118 360 358 LO(35)/Defeasance(81)/Open(4)
132 113 360 353 LO(35)/Defeasance(81)/Open(4)
142 119 360 360 LO(35)/Defeasance(81)/Open(4)
144 117 360 360 LO(35)/Defeasance(81)/Open(4)
145 119 360 359 LO(25)/Flex(91)/Open(4)
145-a
145-b
145-c
145-d
147 116 360 356 LO(35)/Defeasance(81)/Open(4)
148 118 360 360 LO(35)/Defeasance(83)/Open(2)
149 83 360 359 LO(35)/Flex(45)/Open(4)
151 117 360 360 LO(35)/Defeasance(81)/Open(4)
153 117 360 357 LO(27)/Flex(89)/Open(4)
154 117 360 360 LO(35)/Defeasance(81)/Open(4)
156 116 360 356 LO(35)/Defeasance(81)/Open(4)
158 118 360 358 LO(35)/Defeasance(81)/Open(4)
162 117 360 357 LO(35)/Flex(81)/Open(4)
164 116 360 356 LO(35)/Defeasance(81)/Open(4)
165 117 360 357 LO(35)/Flex(81)/Open(4)
166 118 360 360 LO(35)/Defeasance(81)/Open(4)
167 118 300 298 LO(35)/Defeasance(81)/Open(4)
168 119 360 359 LO(25)/Flex(91)/Open(4)
168-a
168-b
168-c
168-d
169 119 0 0 LO(35)/Flex(81)/Open(4)
172 117 360 357 LO(35)/Defeasance(81)/Open(4)
173 115 360 355 LO(35)/Defeasance(81)/Open(4)
174 117 360 360 LO(35)/Defeasance(81)/Open(4)
175 117 360 360 LO(35)/Defeasance(81)/Open(4)
176 119 360 359 LO(25)/Flex(91)/Open(4)
176-a
176-b
176-c
176-d
179 117 360 357 LO(27)/Defeasance(91)/Open(2)
180 117 360 357 LO(35)/Defeasance(81)/Open(4)
181 118 360 358 LO(35)/Flex(81)/Open(4)
184 117 360 357 LO(35)/Defeasance(83)/Open(2)
186 118 360 360 LO(35)/Flex(81)/Open(4)
189 117 360 357 LO(35)/Defeasance(81)/Open(4)
190 119 360 359 LO(25)/Flex(91)/Open(4)
190-a
190-b
190-c
193 116 360 356 LO(35)/Defeasance(81)/Open(4)
194 117 276 273 LO(35)/Defeasance(81)/Open(4)
195 119 360 359 LO(25)/Flex(91)/Open(4)
195-a
195-b
195-c
196 117 300 297 LO(35)/Defeasance(83)/Open(2)
197 117 360 357 LO(35)/Flex(81)/Open(4)
198 118 360 358 LO(35)/Defeasance(81)/Open(4)
199 81 360 357 LO(35)/Defeasance(45)/Open(4)
201 118 120 118 LO(35)/Defeasance(81)/Open(4)
204 117 300 297 LO(35)/Defeasance(81)/Open(4)
204-a
204-b
205 119 300 299 LO(35)/Defeasance(81)/Open(4)
205-a
205-b
OWNERSHIP LOAN ADMINISTRATIVE GRACE PERIOD
ID INTEREST SELLER FEE RATE DUE DATE (PRIOR TO LATE FEES) LETTER OF CREDIT LETTER OF CREDIT DESCRIPTION
------------------------------------------------------------------------------------------------------------------------
22 Fee WFB 0.03135% 1st 5
25 Fee WFB 0.03135% 1st 15
34 Fee WFB 0.06135% 1st 5
38 Fee WFB 0.03135% 1st 5
39 Fee WFB 0.03135% 1st 5
44 Fee WFB 0.08135% 1st 5
46 Fee WFB 0.03135% 1st 5
48 Fee WFB 0.03135% 1st 5
48-a Fee WFB
48-b Fee WFB
49 Fee WFB 0.03135% 1st 5
51 Fee WFB 0.03135% 1st 5 Yes ($300,000) Upfront Holdback Impound LOC
64 Fee WFB 0.03135% 1st 5
73 Fee WFB 0.03135% 1st 5
84 Fee WFB 0.03135% 1st 5
96 Fee WFB 0.03135% 1st 5
98 Fee WFB 0.03135% 1st 5
100 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.08135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 1st 5
145 Fee WFB 0.12135% 1st 5
145-a Fee WFB
145-b Fee WFB
145-c Fee WFB
145-d Fee WFB
147 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.03135% 1st 15
149 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.08135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 1st 5
168 Fee WFB 0.15135% 1st 5
168-a Fee WFB
168-b Fee WFB
168-c Fee WFB
168-d Fee WFB
169 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.08135% 1st 5
176 Fee WFB 0.15135% 1st 5
176-a Fee WFB
176-b Fee WFB
176-c Fee WFB
176-d Fee WFB
179 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.08135% 0xx 0
000 Xxx XXX 0.08135% 1st 5
190 Fee WFB 0.15135% 1st 5
190-a Fee WFB
190-b Fee WFB
190-c Fee WFB
193 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.05135% 1st 5
195 Fee WFB 0.15135% 1st 5
195-a Fee WFB
195-b Fee WFB
195-c Fee WFB
196 Fee WFB 0.03135% 0xx 0
000 Xxx XXX 0.08135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 0xx 0
000 Xxx XXX 0.03135% 1st 5
204 Fee WFB 0.15135% 1st 5
204-a Fee WFB
204-b Fee WFB
205 Fee WFB 0.15135% 1st 5
205-a Fee WFB
205-b Fee WFB
INITIAL MASTER
ID LOAN SPONSOR INITIAL MASTER SERVICER SERVICING FEE RATE
-------------------------------------------------------------------------------------------------------------------------------
22 Xxxxxxx X Xxxxx, Xxxxxx X Xxxxx, Xxxxx Xxxxx, Xxxx X Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
25 Xxxxxx Point Ventures, XX Xxxxx Fargo Bank, National Association 0.03050%
34 Xxxxx X. Xxxxxx, III Xxxxx Fargo Bank, National Association 0.06050%
38 Xxxxxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
39 Xxxxxx Xxxx, Xxxxxxx Fiesch, Xxxxxx X. Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
44 Xxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.08050%
46 Xxxxxx X. Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
00 Xxxxx X Xxxxx, XXX, LLC Xxxxx Fargo Bank, National Association 0.03050%
48-a
48-b
49 Kimco Realty Corporation Xxxxx Fargo Bank, National Association 0.03050%
51 Xxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
64 JWM Family Enterprises, XX Xxxxx Fargo Bank, National Association 0.03050%
73 Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx,
Xx. Xxxxxx X. Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
84 Xxxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
96 Xxxxxxx Xxxxxx, Xxxxxx X Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
98 Xxx Xxxxxxxx Xxxxxx and Xxxxx X. Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
100 Xxxxx Xxxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
106 Madison Realty Partnership LLC Xxxxx Fargo Bank, National Association 0.03050%
107 Xxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
112 Slate Xxxxxxx, Xxxxxxx Commercial, LLC, Xxxxx Fargo Bank, National Association 0.03050%
114 Xxxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
117 Xxxxxx X. Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
124 Xxxxxx X. Xxxxx, Xxxxx X. Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
125 Continental Communities, LLC Xxxxx Fargo Bank, National Association 0.03050%
129 Alexander Hose, Xxxxxx Xxxxxxxx Hose Xxxxx Fargo Bank, National Association 0.08050%
132 Xxxxxx X. Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
142 Xxxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
144 Continental Communities, LLC Xxxxx Fargo Bank, National Association 0.03050%
145 Xxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.12050%
145-a
145-b
145-c
145-d
147 Xxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
148 Xxxxxx X Xxxx Xxxxx Fargo Bank, National Association 0.03050%
149 Xxxxx Wha Xxxxx, Xxxx Xx Ma Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
151 Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.08050%
153 MFI Properties, Inc. Xxxxx Fargo Bank, National Association 0.03050%
154 Xxxxxxx Xxxxxxx, Xxxxxxx X Xxxxxxxx, Xxxx X Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
156 Xxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
158 Xxxxxx XxXxxx, Xxxxx X. XxXxxx Xxxxx Fargo Bank, National Association 0.03050%
162 Xxxx Xxxxxx, Xxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
164 Xxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
165 Xxxxxx Xxxxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx,
Tivoli Plaza LLC. Xxxxx Fargo Bank, National Association 0.03050%
166 Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx,
State Theater, LLC Xxxxx Fargo Bank, National Association 0.03050%
167 Xxxxx X Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
168 Xxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.15050%
168-a
168-b
168-c
168-d
169 Xxxxxx X XxXxxx, Xxxxxxx X Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
172 Xxxxxxxxxx X. Xxxxx Xxxxx Fargo Bank, National Association 0.03050%
173 Xxxxxx X. Xxxxxxx, Xxxxxx X Xxxxxxx, Xxxxxxx X Xxxxxxx,
Xxxxxxx X Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
174 Xxxxxx Xxxxxxxx, Xxxx Xxxxx, Xxxx Xxxxx, Harnov, L.L.C. Xxxxx Fargo Bank, National Association 0.03050%
175 Xxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx Xxxxx Fargo Bank, National Association 0.08050%
176 Xxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.15050%
176-a
176-b
176-c
176-d
179 Xxxxxx X Xxxxxxx, Xxxxxx X Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
180 Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
181 Xxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
184 Xxxxxxx X. XxXxxxxxx, Xxxxx Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
186 Xxxx XxXxxxxx Xxxxx Fargo Bank, National Association 0.08050%
189 Xxxxxxxx Xxxxxxx, Falcon International, Inc. Xxxxx Fargo Bank, National Association 0.08050%
190 Xxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.15050%
190-a
190-b
190-c
193 Xxxxx Xxx Xxxxx Fargo Bank, National Association 0.03050%
194 Xxxxx Xxxxx, Xxxxxx Xxxxx Xxxxx Fargo Bank, National Association 0.05050%
195 Xxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.15050%
195-a
195-b
195-c
196 Xxxxxxxxx Xxxxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
197 Xxxxxxx Xxxxx, Xxx Xxxxxxxx Xxxxx Fargo Bank, National Association 0.08050%
198 Xxxx X Xxxxxxx Xxxxx Fargo Bank, National Association 0.03050%
199 Xxxxxx Xxxxxxx, Xxxxxxx Living Trust Xxxxx Fargo Bank, National Association 0.03050%
201 Xxxxxx X. Xxxx, Xxxxx X. Xxxxxx Xxxxx Fargo Bank, National Association 0.03050%
204 Broadstone Net Lease, LLC Xxxxx Fargo Bank, National Association 0.15050%
204-a
204-b
205 Broadstone Net Lease, LLC Xxxxx Fargo Bank, National Association 0.15050%
205-a
205-b
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER
The Mortgage Loan Seller hereby represents and warrants that, as of
the Closing Date:
(a) The Mortgage Loan Seller is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States.
(b) The Mortgage Loan Seller's execution and delivery of, performance
under, and compliance with this Agreement, will not violate the Mortgage Loan
Seller's organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material instrument to
which it is a party or by which it is bound, which default or breach, in the
good faith and reasonable judgment of the Mortgage Loan Seller, is likely to
affect materially and adversely the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(c) The Mortgage Loan Seller has the full power and authority to
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and delivery
by the other party or parties hereto, constitutes a valid, legal and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan
Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(e) The Mortgage Loan Seller is not in violation of, and its execution
and delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Mortgage Loan Seller's good
faith and reasonable judgment, is likely to affect materially and adversely the
ability of the Mortgage Loan Seller to perform its obligations under this
Agreement.
(f) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation by
the Mortgage Loan Seller of the transactions contemplated herein, except for (A)
those consents, approvals, authorizations or orders that previously have been
obtained and (B) those filings and recordings of Mortgage Loan Documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
(g) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Mortgage Loan Seller's
knowledge, threatened against the Mortgage Loan Seller that, if determined
adversely to the Mortgage Loan Seller, would prohibit
Ex. B-1-1
the Mortgage Loan Seller from entering into this Agreement or that, in the
Mortgage Loan Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
(i) The Mortgage Loan Seller is not transferring the Mortgage Loans to
the Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
(j) The Mortgage Loan Seller will be solvent at all relevant times
prior to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Mortgage Loan Seller's assets,
either taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Mortgage Loan Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Mortgage Loan Seller,
and the Mortgage Loan Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business.
(l) The Mortgage Loan Seller does not intend to, and does not believe
that it will, incur debts or obligations beyond its ability to pay such debts
and obligations as they mature.
(m) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Mortgage Loan Seller are pending or contemplated.
(n) The principal place of business and chief executive office of the
Mortgage Loan Seller is located in the State of California.
(o) The consideration received by the Mortgage Loan Seller upon the
sale of the Mortgage Loans constitutes at least fair consideration and
reasonably equivalent value for such Mortgage Loans.
Ex. B-1-2
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the Closing
Date:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The Purchaser's execution and delivery of, performance under, and
compliance with this Agreement, will not violate the Purchaser's organizational
documents or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party or by
which it is bound, which default or breach, in the good faith and reasonable
judgment of the Purchaser, is likely to affect materially and adversely the
ability of the Purchaser to perform its obligations under this Agreement.
(c) This Agreement, assuming due authorization, execution and delivery
by the other party or parties hereto, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(d) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Purchaser's knowledge,
threatened against the Purchaser that, if determined adversely to the Purchaser,
would prohibit the Purchaser from entering into this Agreement or that, in the
Purchaser's good faith and reasonable judgment, is likely to materially and
adversely affect the ability of the Purchaser to perform its obligations under
this Agreement.
(e) The Purchaser has the full power and authority to consummate all
transactions contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement and has duly executed and delivered
this Agreement.
(f) The Purchaser is not in violation of, and its execution and
delivery of, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely the ability of
the Purchaser to perform its obligations under this Agreement.
Ex. B-2-1
EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Ex. C-1
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EXHIBIT C
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
FOR PURPOSES OF THIS EXHIBIT C, THE PHRASE "THE MORTGAGE LOAN SELLER'S
KNOWLEDGE" AND OTHER WORDS AND PHRASES OF LIKE IMPORT SHALL MEAN, EXCEPT WHERE
OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE OF KNOWLEDGE OF THE
MORTGAGE LOAN SELLER, ITS OFFICERS AND EMPLOYEES RESPONSIBLE FOR THE
UNDERWRITING, ORIGINATION, SERVICING OR SALE OF THE MORTGAGE LOANS REGARDING THE
MATTERS EXPRESSLY SET FORTH BELOW IN EACH CASE WITHOUT HAVING CONDUCTED ANY
INDEPENDENT INQUIRY INTO SUCH MATTERS AND WITHOUT ANY OBLIGATION TO HAVE DONE SO
(EXCEPT (I) HAVING SENT TO THE SERVICERS SERVICING THE MORTGAGE LOANS ON BEHALF
OF THE MORTGAGE LOAN SELLER, IF ANY, SPECIFIC INQUIRIES REGARDING THE MATTERS
REFERRED TO AND (II) AS EXPRESSLY SET FORTH HEREIN). ALL INFORMATION CONTAINED
IN DOCUMENTS WHICH ARE PART OF OR REQUIRED TO BE PART OF A MORTGAGE FILE, AS
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (TO THE EXTENT SUCH DOCUMENTS
EXIST) SHALL BE DEEMED WITHIN THE MORTGAGE LOAN SELLER'S KNOWLEDGE.
The Mortgage Loan Seller hereby represents and warrants that, as of
the date herein below specified or, if no such date is specified, as of the
Closing Date, except with respect to the Exceptions described on Schedule C to
this Agreement and subject to Section 17 of this Agreement:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the date of this
Agreement.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan. The Mortgage
Loan Seller has full right, power and authority to transfer and assign each
Mortgage Loan to or at the direction of the Purchaser free and clear of any and
all pledges, liens, charges, security interests, participation interests and/or
other interests and encumbrances. Upon consummation of transactions contemplated
by this Agreement, the Mortgage Loan Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance. The sale of the Mortgage Loans to the Purchaser or its
designee does not require the Mortgage Loan Seller to obtain any governmental or
regulatory approval or consent that has not been obtained.
3. Payment Record. As of the Closing Date, the Mortgage Loan is not,
and in the prior 12 months (or since the date of origination if such Mortgage
Loan has been originated within the past 12 months), has not been, 30 days or
more past due in respect of any Monthly Payment without giving effect to any
applicable grace period. If the Mortgage Loan Seller was the originator of the
Mortgage Loan, the Mortgage Loan has not been 60 days or more past due in
respect of any Monthly Payment (without
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giving effect to any applicable grace period) at any time since the date of
origination. If the Mortgage Loan Seller was not the originator of the Mortgage
Loan, the Mortgage Loan has not, to the Mortgage Loan Seller's knowledge, been
60 days or more past due in respect of any Monthly Payment (without giving
effect to any applicable grace period) at any time since the date of
origination.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in Paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances, and
there are no liens and/or encumbrances that are pari passu with the lien of such
Mortgage, in any event except for (a) the lien for current real estate taxes,
ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy, a preliminary title policy with escrow instructions, or a
"marked-up" commitment, in each case binding upon the title insurer), none of
which (individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(c) exceptions and exclusions specifically referred to in such lender's title
insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer), none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service such Mortgage Loan,
(d) other matters to which like properties are commonly subject, none of which
(individually or in the aggregate) materially interferes with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (e) the rights of tenants (as tenants only) under leases (including
subleases) pertaining to the related Mortgaged Property which the Mortgage Loan
Seller did not require to be subordinated to the lien of such Mortgage and which
do not (individually or in the aggregate) materially interfere with the security
intended to be provided by such Mortgage, the current marketability or principal
use of the related Mortgaged Property or the current ability of the related
Mortgaged Property to generate income sufficient to service the related Mortgage
Loan, (f) condominium declarations of record and identified in such lender's
title insurance policy (or, if not yet issued, referred to in a pro forma title
policy, a preliminary title policy with escrow instructions or "marked-up"
commitment, in each case binding upon the title insurer) and (g) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Cross-Collateralized
Group (the foregoing items (a) through (g) being herein referred to as the
"Permitted Encumbrances"). Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments and UCC Financing
Statements, establishes and creates a valid and, subject to the exceptions
2
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set forth in Paragraph 13 below, enforceable security interest in favor of the
holder thereof in all items of personal property owned by the related Borrower
which are material to the conduct in the ordinary course of the Borrower's
business on the related Mortgaged Property. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name of the assignee and any related recording
information which is not yet available to the Mortgage Loan Seller), unless the
related Mortgage has been recorded in the name of Mortgage Electronic
Registration Systems, Inc. ("MERS") or its designee, in which case no such
assignment has been executed. Such assignment of Mortgage (if any) constitutes a
legal, valid, binding and, subject to the exceptions set forth in Paragraph 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, to be included in the
related Mortgage File as otherwise contemplated by this Agreement, an Assignment
of Leases, either as a separate instrument or as part of the Mortgage, related
to and delivered in connection with each Mortgage Loan that establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
Paragraph 13 below, enforceable assignment of or first priority lien on and
security interest in, subject to applicable law, the property, rights and
interests of the related Borrower described therein; and each assignor
thereunder has the full right to assign the same. The related assignment of any
Assignment of Leases not included in a Mortgage, executed and delivered in favor
of the Trustee is in recordable form (but for insertion of the name of the
assignee and any related recording information which is not yet available to the
Mortgage Loan Seller) unless the related Mortgage has been recorded in the name
of Mortgage Electronic Registration Systems, Inc. ("MERS") or its designee, in
which case no such assignment has been executed. Such assignment of Assignment
of Leases (if any) constitutes a legal, valid, binding and, subject to the
exceptions set forth in Paragraph 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. If an Assignment
of Leases exists with respect to any Mortgage Loan (whether as part of the
related Mortgage or separately), then the related Mortgage or related Assignment
of Leases, subject to applicable law, provides for, upon an event of default
under the Mortgage Loan, the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or for rents to be paid directly to the mortgagee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property nor any material portion thereof has been released from the
lien of such Mortgage and (c) the related Borrower has not been released from
its obligations under such Mortgage, in whole or in material part, in each such
event in a manner which would materially interfere with the benefits of the
security intended to be provided by such Mortgage.
7. Condition of Property; Condemnation. In the case of each Mortgage
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Loan, except as set forth in an engineering report prepared by a third party
engineering consultant and included in the Servicing File and which has been the
delivered to the initial Controlling Class Representative, the related Mortgaged
Property is, to the Mortgage Loan Seller's knowledge, free and clear of any
damage that would materially and adversely affect its value as security for such
Mortgage Loan (except in any such case where: (1) an escrow of funds or
insurance coverage or a letter of credit exists in an amount reasonably
estimated to be sufficient to effect the necessary repairs and maintenance; or
(2) such repairs and maintenance have been completed; or (3) such repairs and
maintenance are required to be completed and the amount reasonably estimated to
be sufficient to effect the necessary repairs and maintenance does not exceed 5%
of the original principal balance of the related Mortgage Loan). None of the
engineering reports referred to in the first sentence of this Paragraph 7 was
prepared more than 18 months prior to the Closing Date. As of the date hereof,
the Mortgage Loan Seller has no knowledge of any proceeding pending or written
notice of any proceeding threatened for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Mortgage
Loan Seller's knowledge (based solely on surveys (if any) and/or the lender's
title policy (or, if such policy is not yet issued, a pro forma title policy, a
preliminary title policy with escrow instructions or a "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan, (a) all of the improvements on
the related Mortgaged Property considered material in determining the appraised
value of the Mortgaged Property at origination lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current principal
use of such Mortgaged Property, and (b) no improvements on adjoining properties
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association lender's title insurance policy
or a comparable form of lender's title insurance policy approved for use in the
applicable jurisdiction (the "Title Policy") (or, if such policy is yet to be
issued, by a pro forma policy, a preliminary title policy with escrow
instructions or a "marked up" commitment binding on the title insurer) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to any Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Mortgage Loan Seller's knowledge, no material claims have been made thereunder
and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor
to the Mortgage Loan Seller's knowledge, any other holder of the Mortgage Loan
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and
4
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recording of the related Assignment of Mortgage in favor of Purchaser in the
applicable real estate records), such Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the benefit of the
Trustee without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for, or it affirmatively insures (unless the related
Mortgaged Property is located in a jurisdiction where such affirmative insurance
is not available), the following: (a) access to a public road; and (b) that if a
survey was reviewed or prepared in connection with the origination of the
related Mortgage Loan, the area shown on such survey is the same as the property
legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
exceptions set forth in Paragraph 13 below, enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby, including, without limitation,
foreclosure or similar proceedings (as applicable for the jurisdiction where the
related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Mortgage Loan Seller, the
Purchaser or any transferee thereof except in connection with a trustee's sale
after default by the related Borrower or such customary fee, as may be payable,
in connection with any full or partial release of the related Mortgaged Property
or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgage Loans
identified on Schedule C to this Agreement as Property Condition or Engineering
Report Loans, where the environmental assessment with respect to lead based
paint, asbestos containing materials, and radon gas was included in the Property
Condition or Engineering Report, with respect to each Mortgaged Property (a) an
environmental site assessment or an environmental site assessment update (each,
an "Environmental Assessment") was performed by an independent third party
environmental consultant with respect to each Mortgaged Property securing a
Mortgage Loan in connection with the origination of such Mortgage Loan, (b) a
report of each such Environmental Assessment or, in the case of a Property
Condition or Engineering Report Loan, the applicable Property Condition or
Engineering Report, if any (each, an "Environmental Report"), is dated no
earlier than twelve (12) months prior to the Closing Date and has been delivered
to the Purchaser, and (c) either (i) no such Environmental Report, if any,
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provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such material violation of applicable
environmental laws with respect to any known circumstances or conditions
relating to the related Mortgaged Property and the same has not been
subsequently remediated in all material respects, then one or more of the
following are true: (A) a party or parties not related to the related Borrower
was identified as a responsible party for such condition or circumstance, (B)
the related Borrower was required to provide additional security in an amount
reasonably estimated by the Mortgage Loan Seller to be adequate to cure the
violations and/or to obtain and, for the period contemplated by the related
Mortgage Loan documents, maintain an operations and maintenance plan, (C) the
related Borrower provided a "no further action" letter or other evidence
acceptable to the Mortgage Loan Seller in its reasonable business judgment, that
applicable federal, state or local governmental authorities had no current
intention of taking any action, and are not requiring any action, in respect of
such condition or circumstance, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
by the Mortgage Loan Seller to be sufficient for purposes of effecting such
remediation, (G) the related Borrower or other responsible party is currently
taking such actions, if any, with respect to such circumstances or conditions as
have been required by the applicable governmental regulatory authority or
recommended by the environmental site assessment, (H) the related Mortgaged
Property is insured under a policy of insurance, subject to certain per
occurrence and aggregate limits and a deductible, against certain losses arising
from such circumstances and conditions or (I) a responsible party provided a
guaranty or indemnity to the related Borrower and/or the mortgagee to cover the
costs of any required investigation, testing, monitoring or remediation and, as
of the date of origination of the related Mortgage Loan, such responsible party
had, in the Mortgage Loan Seller's sole discretion, an appropriate net worth, or
the financial ability to pay or perform all of its obligations under such
guaranty or indemnity, in light of such material violation of applicable
environmental laws with respect to such known circumstances or conditions
relating to the related Mortgaged Property. To the Mortgage Loan Seller's
knowledge, there are no significant or material circumstances or conditions with
respect to such Mortgaged Property not revealed in any such Environmental
Report, where obtained, or in any Borrower questionnaire delivered to Mortgage
Loan Seller in connection with the issuance of any related environmental
insurance policy, if applicable, that render such Mortgaged Property in material
violation of any applicable environmental laws. For the Mortgaged Properties
identified on Schedule C (Representation 12) to this Agreement, the Mortgage
Loan Seller required the related Borrower to deliver, or the Mortgage Loan
Seller itself obtained, a secured creditor impaired property insurance policy
naming the Mortgage Loan Seller and its successors and/or assigns as a loss
payee (a "Secured Creditor Policy") or a pollution legal liability policy naming
the Mortgage Loan Seller and its successors and/or assigns as an additional
insured (a "PLL Policy"; a Secured Creditor
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Policy or a PLL Policy, an "Environmental Policy") (provided that a Mortgaged
Property will not be identified on Schedule C (Representation 12) to this
Agreement unless the applicable Environmental Policy was obtained to
specifically address an environmental concern or in lieu of obtaining a Phase I
environmental assessment or conducting additional environmental testing); such
Environmental Policy has been issued by an insurer with a claims paying ability
rating or a financial strength rating, as applicable, of no less than "AA" by
each of S&P and Fitch; such Environmental Policy is in full force and effect and
all premiums required to be paid in connection with the issuance of such
Environmental Policy have been so paid; and either such Environmental Policy, by
its terms, inures to the benefit of the holder of the related Mortgage Loan or,
subject to the Seller's compliance with this Agreement, such Environmental
Policy will be assigned to the Trustee within a reasonable period of time
following the Closing Date. All Environmental Reports that were in the
possession of the Mortgage Loan Seller and that relate to a Mortgaged Property
identified on Schedule C (Representation 12) to this Agreement have been
delivered to or disclosed to the environmental insurance carrier issuing the
related Environmental Policy prior to the issuance of such Environmental Policy.
Each Environmental Policy covering a Mortgaged Property identified on Schedule C
(Representation 12) to this Agreement that constitutes a Secured Creditor Policy
is in an amount either (1) at least equal to 125% of the outstanding principal
balance of the related Mortgage Loan or (2) equal to the lesser of cleanup costs
and the outstanding principal balance of the related Mortgage Loan and, in
either case, such policy has a term ending no sooner than the date which is five
years after the Stated Maturity Date (or, in the case of an ARD Loan, the
Anticipated Repayment Date) of the Mortgage Loan to which it relates and either
(x) does not provide for a deductible or (y) provides for a deductible and the
amount of that deductible is held in escrow. Each Environmental Policy covering
a Mortgaged Property identified on Schedule C (Representation 12) to this
Agreement that constitutes a PLL Policy (1) has a term that is co-terminous with
the Stated Maturity Date (or, in the case of an ARD Loan, the Anticipated
Repayment Date) of the related Mortgage Loan, (2) provides for a deductible in
an amount reasonably acceptable to the Mortgage Loan Seller and (3) is in an
amount reasonably acceptable to the Mortgage Loan Seller. The Mortgage for each
Mortgage Loan encumbering the related Mortgaged Property or other related loan
documents require the related Borrower to comply with all applicable federal,
state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent
transfer, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
except that certain provisions in such loan documents may be further limited or
rendered unenforceable by applicable law, but (subject to the limitations set
forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such
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loan documents invalid as a whole or substantially interfere with the
mortgagee's realization of the principal benefits and/or security provided
thereby. Except as set forth in the immediately preceding sentence, there was no
valid offset, defense, counter claim or right of rescission available to the
related Borrower with respect to any of the related Mortgage Notes, Mortgages or
other loan documents, including, without limitation, any such valid offset,
defense, counter claim or right based on intentional fraud by Mortgage Loan
Seller in connection with the origination of the Mortgage Loan, that would deny
the mortgagee the principal benefits intended to be provided by the Mortgage
Note, Mortgage or other loan documents.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least twelve (12) months
(18 months for Mortgage Loans above $35 million) (or a specified dollar amount
which, in the reasonable judgment of the Mortgage Loan Seller, will cover no
less than twelve (12) months (18 months for Mortgage Loans above $35 million) of
rental income). Set forth on Schedule C (Representation 14) to this Agreement is
a list of those Mortgaged Properties as to which a tenant having a net worth of
at least $50,000,000 or an investment grade rating provided self-insurance, as
contemplated by the second preceding sentence, as of the date of origination of
the subject Mortgage Loan. All such hazard insurance policies described above
contain a standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns, as mortgagee as an additional insured in
the case of liability insurance policies or as a loss payee in the case of
property insurance policies, and are not terminable (nor may the amount of
coverage provided thereunder be reduced) without prior written notice to the
mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Except under circumstances that
would be reasonably acceptable to a prudent commercial mortgage lender, the
Mortgage for each Mortgage Loan provides that proceeds paid under any such
casualty insurance policy will (or, at the lender's option, will) be applied
either to the repair or restoration of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage may entitle the related Borrower to any portion of such proceeds
remaining after the repair or restoration of the related Mortgaged Property or
payment of amounts due under the Mortgage Loan; and provided, further, that, if
the related Borrower holds a leasehold interest in the related Mortgaged
Property, the application of such proceeds will be subject to the terms of the
related Ground Lease (as defined in Paragraph 18 below). Each Mortgage requires
that the Borrower or a tenant of the Borrower maintain insurance as described
above or permits the mortgagee to require insurance or self-insurance as
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described above, and permits the mortgagee to purchase such insurance at the
Borrower's expense if Borrower fails to do so or provides that the mortgagee has
the general right to cure defaults of the Borrower. Each Mortgaged Property is
also covered by comprehensive general liability insurance in an amount at least
equal to $1 million. If any material part of the improvements, exclusive of a
parking lot, located on a Mortgaged Property is in an area identified in the
Federal Register by the Federal Emergency Management Agency as having special
flood hazards, the related Borrower is required to maintain flood insurance in
respect thereof to the extent such flood insurance is available.
15. Taxes and Assessments. To the Mortgage Loan Seller's knowledge,
there are no delinquent property taxes or assessments or other outstanding
charges affecting any Mortgaged Property securing a Mortgage Loan that are a
lien of priority equal to or higher than the lien of the related Mortgage, or if
there are such delinquent charges or taxes, or if the appropriate amount of such
taxes or charges is being appealed or is otherwise in dispute, the unpaid taxes
or charges are covered by an escrow of funds or other security sufficient to pay
such tax or charge. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent until the date
on which interest and/or penalties would be payable thereon.
16. Borrower Bankruptcy. To the Mortgage Loan Seller's knowledge, no
Borrower under a Mortgage Loan is a debtor in any state or federal bankruptcy,
insolvency or similar proceeding. To the Mortgage Loan Seller's knowledge, as of
the origination of the Mortgage Loan, none of (x) the nonrecourse carveout
guarantors or nonrecourse carveout indemnitors under the Mortgage Loan, (y) any
tenant with respect to more than 75% of the net rentable area at the related
Mortgaged Property that is an Affiliate of the Borrower or (z) the sole tenant
at the Mortgaged Property (in the case of this clause (z), if substantially all
of the Mortgaged Property is leased to a single tenant and the tenant was the
owner of the Mortgaged Property immediately prior to the origination of the
Mortgage Loan) was a debtor in any state or federal bankruptcy, insolvency or
similar proceeding.
17. Local Law Compliance. To the Mortgage Loan Seller's knowledge,
based upon any of a letter from governmental authorities, a legal opinion, an
architect's letter, a zoning consultant's report, an endorsement to the related
title policy, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located (including, without limitation, when commercially
reasonable, a representation of the related Borrower at the time of origination
of the subject Mortgage Loan), the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect (i) the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan; or (ii) the principal use of the
Mortgaged Property as of the date of the origination of such Mortgage Loan). As
of the date of origination, with respect to each legal non-conforming use or
structure, the originator determined (based on either (x) any
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of a review of the applicable zoning law, a letter from a governmental
authority, a legal opinion, an architect's letter, a zoning consultant's report,
an endorsement to the related title policy or a combination of the foregoing or
(y) due diligence considered reasonable by prudent commercial mortgage lenders
in the lending area where the subject Mortgaged Property is located) that if a
casualty occurred at that time, the Mortgaged Property could have been restored
or repaired to such an extent that the use or structure of the restored or
repaired property would be substantially the same use or structure, or law and
ordinance insurance has been obtained, or a holdback has been established and
the Borrower is required to take steps necessary to cause the Mortgaged Property
to become a conforming use or structure.
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted for
recording; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written instruments which are a part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than the related Fee Interest and
Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to, and
is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it either has been obtained or cannot be unreasonably
withheld; provided that such Ground Lease has not been terminated and
all amounts owed thereunder have been paid). If required by such
Ground Lease, the lessor has received notice of the lien of the
related Mortgage in accordance with the provisions of such Ground
Lease;
(d) The related ground lessor has agreed to provide the holder of the
Mortgage Loan notice and the holder of such Mortgage Loan is permitted
a reasonable time to cure any default or breach by the lessee
thereunder, including such time as is necessary to gain possession of
the Mortgaged Property, by foreclosure or otherwise, if possession is
necessary to effect such cure, before the lessor thereunder may
terminate such Ground Lease;
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(e) In connection with the origination of such Mortgage Loan, the
related ground lessor provided an estoppel to the originator
confirming that the related Borrower was not then in default under
such Ground Lease; such Ground Lease provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered to
the mortgagee; the Mortgage Loan Seller has not received any written
notice of default under or termination of such Ground Lease; to the
Mortgage Loan Seller's knowledge, there is no material default under
such Ground Lease and no condition that, but for the passage of time
or giving of notice, would result in a material default under the
terms of such Ground Lease; and, to the Mortgage Loan Seller's
knowledge, such Ground Lease is in full force and effect as of the
Closing Date;
(f) Such Ground Lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the mortgagee if it
takes possession of such leasehold interest) that extends not less
than 20 years beyond the stated maturity of the related Mortgage Loan,
or 10 years if such Mortgage Loan fully or substantially amortizes by
the stated maturity;
(g) Such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease as a result of
a rejection of such Ground Lease in a bankruptcy proceeding involving
the related Borrower, unless the mortgagee under such Mortgage Loan
fails to cure a curable default of the lessee under such Ground Lease
following notice thereof from the lessor;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds with respect
to the leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender) or (ii) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender on a similar mortgaged property in the
lending area where the Mortgaged Property is located at the time of
the origination of such Mortgage Loan; and
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(j) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns, provided that such mortgagee has
provided the ground lessor with notice of its lien in accordance with
the terms of such Ground Lease.
19. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(f)(2)).
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Mortgage Loan Seller nor, to the Mortgage Loan Seller's knowledge, any prior
holder of such Mortgage Loan has advanced funds or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property (other than amounts paid by the tenant as
specifically provided under a related lease), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
Monthly Payment.
22. Legal Proceedings. To the Mortgage Loan Seller's knowledge, there
are no pending actions, suits, governmental investigations or proceedings by or
before any court or governmental authority against or affecting the Borrower
under any Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Borrower or Mortgaged Property, would materially and adversely
affect the value of the Mortgaged Property, the principal benefit of the
security intended to be provided by the Mortgage Loan Documents, the current
ability of the Mortgaged Property to generate net cash flow sufficient to
service such Mortgage Loan, or the current principal use of the Mortgaged
Property.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
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related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
other underwriting criteria specified therein. To the Mortgage Loan Seller's
knowledge, except for cases involving Cross-Collateralized Mortgage Loans, none
of the Mortgaged Properties securing the Mortgage Loans is encumbered by any
mortgage liens junior to or of equal priority with the liens of the related
Mortgage. Each of the related Mortgage Loan Documents requires the Borrower to
pay all reasonable costs and expenses related to obtaining consent to an
encumbrance.
24. No Mechanics' Liens. As of the date of origination and, to the
Mortgage Loan Seller's knowledge, as of the Closing Date, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
is free and clear of any and all mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance; and, to the Mortgage Loan Seller's
knowledge, no rights are outstanding that under law could give rise to any such
lien that would be prior or equal to the lien of the related Mortgage and that
is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Mortgage Loan Seller's knowledge, as
of the date of origination of each Mortgage Loan, and based on any of: (i) a
letter from governmental authorities, (ii) a legal opinion, (iii) an endorsement
to the related Title Policy, (iv) a representation of the related borrower at
the time of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then operated or such
material licenses, permits and franchises have otherwise been issued, and, as of
the Cut-Off Date, the Mortgage Loan Seller has no written notice that the
related Borrower was not in possession of such licenses, permits and franchises
or that such licenses, permits and franchises have not otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
U.S. "government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Cross-Collateralized Mortgage Loans
and the other individual Mortgage
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Loans secured by multiple parcels may require the respective mortgagee(s) to
grant releases of portions of the related Mortgaged Property or the release of
one or more related Mortgaged Properties upon (i) the satisfaction of certain
legal and underwriting requirements, (ii) the payment of a release price and, if
so provided in the related Mortgage Loan Documents, prepayment consideration in
connection therewith or (iii) the substitution of real property collateral; and
provided, further, that any Mortgage Loan may permit the unconditional release
of one or more unimproved parcels of land to which the Mortgage Loan Seller did
not give any material value in underwriting the Mortgage Loan. With respect to
any full or partial release or substitution of collateral, as contemplated by
the provisos to the immediately preceding sentence, either: (a) such release or
substitution of collateral (i) would not constitute a "significant modification"
of the subject Mortgage Loan within the meaning of Treasury Regulations Section
1.860G-2(b)(2) and (ii) would not cause the subject Mortgage Loan to fail to be
a "qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code;
or (b) the mortgagee or servicer can, in accordance with the related Mortgage
Loan Documents, condition such release or substitution of collateral on the
related Borrower's delivery of an opinion of tax counsel to the effect specified
in the immediately preceding clause (a).
29. Defeasance. If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan either (A) (1) permits
defeasance no earlier than two years after the Closing Date, (2) permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i), in an
amount sufficient to make all scheduled payments under the Mortgage Note and (3)
has been transferred by the Mortgage Loan Seller with the intent that the
defeasance provision not be utilized (x) for any reason other than to facilitate
the disposition of the Mortgaged Property or any other customary commercial
transaction or (y) as a part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages or (B) requires that a legal
opinion or opinions be delivered with respect to the defeasance that states
subject to customary assumptions and qualifications that the holder of the such
Mortgage Loan has a first priority perfected security interest in the defeasance
collateral and that the defeasance will not cause the Trust to fail to qualify
as a REMIC as defined in the REMIC Provisions (the "Legal Opinion"). The related
Mortgage Loan Documents enable the lender to charge the Borrower for the
expenses associated with permitting a defeasance and provide for the following
items (or otherwise contain provisions pursuant to which the holder can require
such items): (a) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan for the
remainder of its term, (b) the Legal Opinion, and (c) a letter or other written
evidence from the Rating Agencies to the effect that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings assigned to
the Certificates.
30. Fixed Rate Loan. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
31. Inspection. Each related Mortgaged Property was inspected by or on
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behalf of the related originator or an affiliate during the 12 month period
prior to the related origination date.
32. No Material Default. To the Mortgage Loan Seller's knowledge,
there exists no material default, breach, violation or event of acceleration
under the Mortgage Note or Mortgage for any Mortgage Loan and no event has
occurred which, with the passing of time or giving of notice and the expiration
of any grace or cure period, would constitute such a material default or breach;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Mortgage Loan Seller in this Exhibit C.
Neither the Mortgage Loan Seller nor any servicer on behalf of the Mortgage Loan
Seller has accelerated the Mortgage Loan or commenced judicial or non-judicial
foreclosure proceedings with respect to the Mortgage Loan.
33. Due-on-Sale. Except for transfers to specific parties that are
identified and pre-approved in the Mortgage Loan Documents and except with
respect to certain transfers by reason of family and estate planning and/or a
substitution or release of collateral within the parameters of Paragraph 28
above, each Mortgage contains a "due on sale" clause which expressly or
effectively provides for the acceleration of the payment of the unpaid principal
balance and accrued interest of the related Mortgage Loan if, without the prior
written consent of the holder of such Mortgage and/or the satisfaction of
specified criteria set forth in the related Mortgage Loan Documents, the
property subject to the Mortgage or any material portion thereof, or any
controlling interest in the Borrower (except for a transfer of a controlling
interest in the Borrower to a Person where one or more individuals specified in
the Mortgage (i) own and control at least 50% of the same type of ownership
interests in such Person and the Mortgaged Property as such individuals held in
the original Borrower and the Mortgaged Property and (ii) such individuals
continue to control the management of such Person and the Mortgaged Property),
is directly or indirectly transferred or sold; provided, however, that certain
Mortgage Loans provide a mechanism for the assumption of the loan by a third
party upon the Borrower's satisfaction of certain conditions precedent, and upon
payment of a transfer fee, if any, or transfer of interests in the Borrower or
constituent entities of the Borrower to a third party or parties related to the
Borrower upon the Borrower's satisfaction of certain conditions precedent.
34. Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance of $10,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Mortgaged Properties,
and whose organizational documents further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Mortgaged Properties, or any
indebtedness
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other than as permitted by the related Mortgage(s) or the other related Mortgage
Loan Documents, that it has its own books and records and accounts separate and
apart from any other person, that it holds itself out as a legal entity
(separate and apart from any other person), that it will not guarantee or assume
the debts of any other person, that it will not commingle assets with
affiliates, and that it will not transact business with affiliates except on an
arm's-length basis.
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Security Interests in Hospitality Properties. If any Mortgaged
Property securing a Mortgage Loan is operated as a hospitality property then (a)
the security agreements, financing statements or other instruments, if any,
related to the Mortgage Loan secured by such Mortgaged Property establish and
create a valid and enforceable (subject to the exceptions set forth in Paragraph
13 above) first priority security interest in all items of personal property
owned by the related Borrower which are material to the conduct in the ordinary
course of the Borrower's business on the related Mortgaged Property, subject
only to purchase money security interests, personal property leases and security
interests to secure revolving lines of credit and similar financing; and (b) one
or more Uniform Commercial Code financing statements covering such personal
property have been filed or recorded (or have been sent for filing or recording)
wherever necessary to perfect under applicable law such security interests (to
the extent a security interest in such personal property can be perfected by the
filing of a Uniform Commercial Code financing statement under applicable law).
The related assignment of such security interest (but for insertion of the name
of the assignee and any related information which is not yet available to the
Mortgage Loan Seller) executed and delivered in favor of the Trustee constitutes
a legal, valid and binding assignment thereof from the relevant assignor to the
Trustee.
37. Prepayment Premiums. Prepayment Premiums payable with respect to
each Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
38. [RESERVED]
39. [RESERVED]
40. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower, or a natural
person, for damages sustained in connection with the Borrower's fraud or willful
misrepresentation, failure to deliver insurance or condemnation proceeds or
awards or security deposits to lender or to apply such sums as required under
the Mortgage Loan Documents, failure to apply rents and other income during a
default or after acceleration to either amounts owing under the loan or normal
and necessary operating expenses of the property or commission of material
physical waste at the Mortgaged Property. The related Mortgage Loan documents
contain provisions pursuant to which the related Borrower, a principal of such
16
WFB
Borrower or an entity controlled by a principal of such Borrower, or a natural
person, has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental covenants.
41. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that has not been assigned to the Purchaser.
42. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
43. Escrows. All escrow deposits (including capital improvements,
environmental remediation reserves and other reserve deposits, if any) relating
to any Mortgage Loan that were required to be delivered to the lender under the
terms of the related Mortgage Loan Documents, have been received and, to the
extent of any remaining balances of such escrow deposits, are in the possession
or under the control of Mortgage Loan Seller or its agents (which shall include
the applicable Master Servicer). All such escrow deposits which are required for
the administration and servicing of such Mortgage Loan are conveyed hereunder to
the Purchaser. Any and all material requirements under each Mortgage Loan as to
completion of any material improvements and as to disbursement of any funds
escrowed for such purpose, which requirements were to have been complied with on
or before the Closing Date, have been complied with in all material respects or,
if and to the extent not so complied with, the escrowed funds (or an allocable
portion thereof) have not been released except in accordance with the terms of
the related loan documents.
44. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage Loan Documents require the related Borrower, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than quarterly and
annually and financial statements of the Borrower not less frequently than
annually (except if the Mortgage Loan has an outstanding principal balance of
less than or equal to $4,000,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases the Mortgage Loan
Documents require the Borrower, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Borrower
annually), and such other information as may be required therein.
45. Appraisals. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of the Mortgage Loan, which
appraisal is signed by an appraiser, who, to the Mortgage Loan Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; in connection
with the origination of the Mortgage Loan, each appraiser has represented in
such appraisal or in a supplemental letter that the appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation.
17
WFB
46. No Capital Contributions. The Mortgage Loan Seller has no
obligation to make any capital contributions to the related Borrower under the
Mortgage Loan.
47. Grace Periods. The related Mortgage or Mortgage Note provides a
grace period for Monthly Payments no longer than ten (10) days from the
applicable Due Date.
48. Access Routes. Based solely on surveys, title insurance reports,
the Title Policy, the engineering report, the appraisal and/or other relevant
documents included in the Mortgage File, at the time of origination of the
Mortgage Loan, the Mortgaged Property had access to a public road.
49. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, in
which case the Mortgage Loan requires the Borrower to escrow an amount
sufficient to pay taxes for the existing tax parcel of which the Mortgaged
Property is a part.
50. Loan Servicing. The servicing practices used with respect to each
Mortgage Loan have been in all material respects legal, proper, and prudent.
51. Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related all risk insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. To the
Mortgage Loan Seller's knowledge, as of the date of origination of the Mortgage
Loan the related all risk insurance policy and business interruption policy did
not, and as of the date hereof the related all risk insurance policy and
business interruption policy does not, specifically exclude acts of terrorism
from coverage. The knowledge of the Mortgage Loan Seller referred to in the
preceding sentence is based on the procedures described on Schedule C hereto.
With respect to each of the Mortgage Loans, the related Mortgage Loan Documents
do not expressly waive or prohibit the mortgagee from requiring coverage for
acts of terrorism or damages related thereto, except to the extent that any
right to require such coverage may be limited by commercially reasonable
availability, or as otherwise indicated on Schedule C to this Agreement.
18
SCHEDULE C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Sch. C-1
FINAL
SCHEDULE A
BSCMSI 2007-PWR 15/XXXXX FARGO POOL 53
XXXXX FARGO LOANS
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
1. Mortgage Loan Schedule.
2. Ownership of Mortgage Loans.
o One Corporate Center I & III (610905699)($17,720,000):
Correspondent fee agreement executed with third party (NorthMarq
Capital, Inc.)
o The Concourse Shopping (610905562)($16,100,000): Correspondent
fee agreement executed with third party (Live Oak Capital)
o 000 Xxxxx Xxxxxx (620905367)($4,400,000): Correspondent fee
agreement executed with third party (CBRE Melody of Texas, LP.)
o Casual Cartage - Northeast (620905225)($3,360,000): Correspondent
fee agreement executed with third party (Beacon Realty Capital)
o Casual Cartage - Southwest (620905224)($2,640,000): Correspondent
fee agreement executed with third party (Beacon Realty Capital)
o Houston All Weather Storage (620905299)($2,250,000):
Correspondent fee agreement executed with third party (Sunrise
Mortgage & Investment)
o Town Centre Plaza (620905249)($2,170,000): Correspondent fee
agreement executed with third party (NorthMarq Capital, Inc.)
o Grayhawk Office Bldg (620905052)($1,700,000): Correspondent fee
agreement executed with third party (Horizon Mortgage Capital
Corp.)
3. Payment Record.
4. Lien; Valid Assignment.
o Walgreens--Keokuk, Iowa (410905502)($3,750,000) Tenant
(Walgreen's) has Right of First Refusal (ROFR); ROFR is not
extinguished by foreclosure; Foreclosure/deed-in-lieu does not
trigger ROFR, however
o Rite Aid - Orem (410904589)($2,430,000): Tenant (Rite-Aid) has
Right of First Refusal (ROFR); ROFR is not extinguished by
foreclosure; Foreclosure/deed-in-lieu does not trigger ROFR,
however
o 0000 Xxxxxx Xxxxxx Xxxxxxx Xxxx (410905235)($1,570,000): (i)
Tenant (Community Health Centers) has Right of First Offer (ROFO)
affecting entirety of mortgaged property; ROFR is not
extinguished by foreclosure; Foreclosure/deed-in-lieu does not
trigger ROFR, however
5. Assignment of Leases and Rents.
6. Mortgage Status; Waivers and Modifications
7. Condition of Property; Condemnation.
8. Title Insurance.
9. No Holdbacks.
10. Mortgage Provisions.
11. Trustee under Deed of Trust.
12. Environmental Conditions.
Schedule A Loans (In lieu of Phase I, property was included in lender's
group secured creditor impaired policy, except as otherwise indicated
regarding inclusion in individual environmental loan policy)
o A-American Sylmar (410905423)($4,750,000)
o 000 Xxxxx Xxxxxx (620905367)($4,400,000)
o Dollar General II (Pool 4) (410905328)($3,547,000)
o Countryside Village (410905017)($3,485,000)
o 2829 - 0000 X. Xxxxxxxx Xxxx (410905528)($3,400,000)
o Center Stage at Lumberton (410905541)($3,400,000)
o World Business Center (410905237)($3,300,000)
o 2700 - 2702 Xxxx Xxxxxx (410904913)($3,250,000)
o Pendleton Shopping Center (410904986)($3,175,000)
o 000 Xxxx Xxxxxx (410905176)($3,150,000)
x XxXxxxx Village MHC (410905016)($2,960,000)
o Urban Outfitters - Ann Arbor, MI (410905317)($2,850,000)
o Dollar General II (Pool 5) (410905329)($2,828,000)
o Tech Industrial (410905474)($2,750,000)
o Parkridge Apts (410904903)($2,700,000)
o University Retail Center (410905179)($2,700,000)
x Xxxxxxx Town Center (410905175)($2,650,000)
o Dollar General II (Pool 1) (410905325)($2,640,000)
o Auburn Oaks Plaza (410905356)($2,500,000)
o Houston All Weather Storage (620905299)($2,250,000)
2
o Town Centre Plaza (620905249)($2,170,000)
o Dollar General II (Pool 2) (410905326)($2,112,000)
o Sugar Creek Square Shopping Center (410904661)($2,100,000)
x Xxxxxxx Access Storage (410905318)($2,025,000)
o Dollar General II (Pool 6) (410905330)($1,980,000)
o The Sports Authority (410905133)($1,800,000)
o Grayhawk Office Xxxx (000000000)(x0,000,000)
x Xxxxxxx Xxxxxx (410905265)($1,624,000)
o 0000 Xxxxxx Xxxxxx Xxxxxxx Xxxx (410905235)($1,570,000)
o Thanksgiving Point (410905280)($1,200,000)
Schedule C Information: All loans to be listed on Schedule A above are
likewise included on Schedule C as being the subject of a Secured Creditor
Impaired Property Policy. The Policy Issuer is Steadfast Insurance Company,
an affiliate of Zurich North America. The individual claim limit under the
group Secured Creditor Impaired Property Policy is $4,562,500.
In addition, the following loans are the subject of individual Secured
Creditor Impaired Property Policies, as follows:
o Charlotte Marriott SouthPark (310905398)($22,000,000): Secured
creditor impaired property policy issued by Steadfast Insurance
Company, an affiliate of Zurich North America, in lieu of
providing an environmental indemnity from a borrower principal.
The current Phase I for each property does not indicate further
action being required. The aggregate claims limit is 45% of the
related loan amounts (or $10,000,000). The term of the
environmental policy is 5 years past loan maturity, and the
policy premiums have been prepaid
o Courtyard Novato Marin - Sonoma (310905399)($10,000,000): Secured
creditor impaired property policy issued by Steadfast Insurance
Company, an affiliate of Zurich North America, in lieu of
providing an environmental indemnity from a borrower principal.
The current Phase I for each property does not indicate further
action being required. The aggregate claims limit is 50% of the
related loan amounts (or $5,000,000). The term of the
environmental policy is 5 years past loan maturity, and the
policy premiums have been prepaid
13. Loan Document Status.
14. Insurance.
o Parkridge Apts (410904903)($2,700,000): Loan documents do not
require terrorism insurance; Borrowers (natural persons) are
liable for related losses, however
o FedEx Express - Traverse City (410905174)($2,520,000): $250,000
deductible permitted regarding casualty policy so long as FedEx
is tenant
15. Taxes and Assessments.
16. Borrower Bankruptcy.
3
17. Local Law Compliance.
18. Leasehold Estate Only.
19. Qualified Mortgage.
20. Advancement of Funds.
21. No Equity Interest, Equity Participation or Contingent Interest.
22. Legal Proceedings.
23. Other Mortgage Liens.
o Casual Cartage - Northeast (620905225)($3,360,000): Subordinate
loan is evidenced by $210,000 B Note; B Note and right of holder
of B Note to receive payments is junior and subordinate to A-2
Note and rights of holder of A-2 Note; Xxxxx Fargo is collateral
agent for A and B noteholders; Intercreditor agreement obtained
o Casual Cartage - Southwest (620905224)($2,640,000): Subordinate
loan is evidenced by $165,000 B Note; B Note and right of holder
of B Note to receive payments is junior and subordinate to A-2
Note and rights of holder of A-2 Note; Xxxxx Fargo is collateral
agent for A and B noteholders; Intercreditor agreement obtained
24. No Mechanics' Liens.
25. Compliance.
26. Licenses and Permits.
27. Cross-collateralization.
28. Releases of Mortgage Property.
29. Defeasance.
30. Fixed Rate Loan.
31. Inspection.
32. No Material Default.
33. Due-on-Sale.
34. Single-Purpose Entity.
35. Whole Loan.
36. Security Interests in Hospitality Properties.
37. Prepayment Premiums.
38. [RESERVED]
39. [RESERVED]
4
40. Recourse.
41. Assignment of Collateral.
42. Fee Simple or Leasehold Interests.
43. Escrows.
44. Operating Statements.
45. Appraisals.
46. No Capital Contributions.
47. Grace Periods.
48. Access Routes.
49. Tax Parcels.
50. Loan Servicing.
51. Terrorism Insurance.
o Parkridge Apts (410904903)($2,700,000): Loan documents do not require
terrorism insurance; Borrowers (natural persons) are liable for
related losses, however
5
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR
AN ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed Certificate attached at Tab ___.
Ex. X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE MORTGAGE LOAN SELLER
CERTIFICATE OF MORTGAGE LOAN SELLER
In connection with the execution and delivery by Xxxxx Fargo Bank,
National Association ("Xxxxx Fargo Bank") of, and the consummation of the
various transactions contemplated by, that certain Mortgage Loan Purchase and
Sale Agreement dated as of March 8, 2007 (the "Mortgage Loan Purchase
Agreement") among Xxxxx Fargo Bank as seller and Bear Xxxxxxx Commercial
Mortgage Securities Inc. as purchaser (the "Purchaser"), the undersigned hereby
certifies that (i) except as previously disclosed to the Purchaser in writing,
the representations and warranties of Xxxxx Fargo Bank in or made pursuant to
Section 4(a) of the Mortgage Loan Purchase Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if made
on the date hereof, (ii) Xxxxx Fargo Bank has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
required under the Mortgage Loan Purchase Agreement to be performed or satisfied
at or prior to the date hereof, and (iii) since the date of the Mortgage Loan
Purchase Agreement, there will not have been, immediately prior to the transfer
of the Mortgage Loans pursuant to the Mortgage Loan Purchase Agreement, any
material adverse change in the financial condition of Xxxxx Fargo Bank.
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Mortgage Loan Purchase Agreement.
Certified this 29th day of March, 2007.
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------
Name:
Title:
Ex. D-2-1
EXHIBIT D-3A
FORM OF OPINION PURSUANT TO SECTION 7(vi)
Executed opinion attached at Tab ___.
Ex. D-3A-1
EXHIBIT D-3B
FORM OF OPINION PURSUANT TO SECTION 7(vii)
Executed opinion attached at Tab ___.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(viii)
Executed opinion attached at Tab ___ and Tab ___.
Ex. D-3C-1
