EXECUTION VERSION
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"),
is dated and effective as of September 12, 2007, between Prudential Mortgage
Capital Funding, LLC ("PMCF"), 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
PMCF desires to sell, assign, transfer, set over and otherwise
convey to BSCMSI, without recourse, representation or warranty, other than as
set forth herein, and BSCMSI desires to purchase, subject to the terms and
conditions set forth herein, the multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may be amended
from time to time pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the primary assets
of which will be a segregated pool of multifamily and commercial mortgage loans
that includes the Mortgage Loans and certain other commercial and multifamily
mortgage loans (collectively, the "Trust Mortgage Loans"). Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc., and
Fitch, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of September 1, 2007 (the "Pooling and Servicing
Agreement"), among BSCMSI, as depositor (in such capacity, the "Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such capacity, a
"Master Servicer"), Xxxxx Fargo Bank, National Association, as a master servicer
(in such capacity, a "Master Servicer"), as certificate administrator (in such
capacity, the "Certificate Administrator") and as tax administrator (in such
capacity, the "Tax Administrator"), Centerline Servicing Inc., as a special
servicer (a "Special Servicer"), and LaSalle Bank National Association, as
trustee (the "Trustee"). Capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned to them in the Pooling and Servicing
Agreement as in full force and effect on the Closing Date (as defined in Section
1 hereof). It is anticipated that BSCMSI will transfer the Mortgage Loans to the
Trust contemporaneously with its purchase of the Mortgage Loans hereunder.
BSCMSI intends to sell the Registered Certificates to Bear, Xxxxxxx
& Co. Inc. ("BSC") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"; and
together with BSC in such capacity, the "Underwriters"), pursuant to an
underwriting agreement, dated the date hereof (the "Underwriting Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the remaining
Certificates (the "Non-Registered Certificates") to BSC and Xxxxxx Xxxxxxx
(together in such capacities, the "Initial Purchasers") pursuant to a
certificate purchase agreement, dated the date hereof (the "Certificate Purchase
Agreement"), among BSCMSI and
the Initial Purchasers. The Registered Certificates are more fully described in
the prospectus dated May 29, 2007 (the "Base Prospectus"), and the supplement to
the Base Prospectus dated September 12, 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.
PMCF 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 PMCF, 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. ss.ss.229.1100-229.1123, as such
may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506-1,631 (January 7, 2005)) or by the staff of the Commission, or as may be
provided by the Commission or its staff from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller agrees to
sell, assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, representation or warranty, other than as set forth herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms
and conditions set forth herein, the Mortgage Loans. The purchase and sale of
the Mortgage Loans shall take place on September 27, 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 $489,239,422, 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
September 27, 2007, between the parties to this Agreement, which purchase price
excludes accrued interest and applicable deal expenses. The Purchaser shall pay
such purchase price, plus interest accrued on the Mortgage Loans from the
Cut-off Date to the Closing Date and any applicable deal expenses, to the
Mortgage Loan Seller on the Closing Date by wire transfer in immediately
available funds or by such other method as shall be mutually acceptable to the
parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and the other conditions to
the Mortgage Loan Seller's obligations set forth herein, the Mortgage Loan
Seller does hereby sell, 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
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perfecting such security interest under applicable law; and (v) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, securities intermediaries, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. The Mortgage Loan Seller and the Purchaser shall,
to the extent consistent with this Agreement, take such actions as may be
reasonably necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as
specified in clause (i) of the definition of "Mortgage File", and, on or before
the date that is 45 days following the Closing Date, the remainder of the
Mortgage File for each Mortgage Loan and any Additional Collateral (other than
original Letters of Credit and Reserve Funds, which shall be transferred to the
Trustee or to the applicable Master Servicer) for each Mortgage Loan.
Notwithstanding the preceding sentence, if the Mortgage Loan Seller cannot so
deliver, or cause to be delivered, as to any Mortgage Loan (exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vii) and (ix)(A) of the definition of "Mortgage File",
with evidence of recording or filing (if applicable, and as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, then (subject to the obligation of the Mortgage Loan
Seller to nonetheless (1) from time to time make or cause to be made reasonably
diligent efforts to obtain such document or instrument (with such evidence) if
it is not returned within a reasonable period after the date when it was
transmitted for recording and (2) deliver such document or instrument to the
Trustee or a Custodian appointed thereby (if such document or instrument is not
otherwise returned to the Trustee or such Custodian) promptly upon the Mortgage
Loan Seller's receipt thereof), so long as a copy of such document or
instrument, certified by the Mortgage Loan Seller or title agent as being a copy
of the document deposited for recording or filing and (in the case of such
clause (ii)) accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a statement from the title agent to the effect that such original Mortgage
has been sent to the appropriate public recording official for recordation, has
been delivered to the Trustee on or before the date that is 45 days following
the Closing Date, the delivery requirements of this subsection shall be deemed
to have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related 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
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transmitted for recording and (2) deliver such document or instrument to the
Trustee or a Custodian appointed thereby (if such document or instrument is not
otherwise returned to the Trustee or such Custodian) promptly upon the Mortgage
Loan Seller's receipt thereof), so long as a copy of such document or
instrument, certified by the Mortgage Loan Seller, a title agent or a recording
or filing agent as being a copy of the document deposited for recording or
filing and accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a statement from the title agent that such document or instrument has been
sent to the appropriate public recording official for recordation (except that
such certification shall not be required if the Trustee is responsible for
recordation of such document or instrument under the Pooling and Servicing
Agreement and the Mortgage Loan Seller has delivered the original unrecorded
document or instrument to the Trustee on or before the date that is 45 days
following the Closing Date), has been delivered to the Trustee on or before the
date that is 45 days following the Closing Date, the delivery requirements of
this subsection shall be deemed to have been satisfied as to such missing item,
and such missing item shall be deemed to have been included in the related
Mortgage File. In addition, with respect to each Mortgage Loan (exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage Loan) under
which any Additional Collateral is in the form of a Letter of Credit as of the
Closing Date, the Mortgage Loan Seller shall cause to be prepared, executed and
delivered to the issuer of each such Letter of Credit such notices, assignments
and acknowledgments as are required under such Letter of Credit to assign,
without recourse, to the Trustee the Mortgage Loan Seller's rights as the
beneficiary thereof and drawing party thereunder. Furthermore, with respect to
each Mortgage Loan, if any, as to which there exists a secured creditor impaired
property insurance policy or pollution limited liability environmental
impairment policy covering the related Mortgaged Property, the Mortgage Loan
Seller shall cause such policy, within a reasonable period following the Closing
Date, to inure to the benefit of the Trustee for the benefit of the
Certificateholders (if and to the extent that it does not by its terms
automatically inure to the holder of such Mortgage Loan). For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
(d) 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 paying, pursuant to a separate agreement and not
pursuant to this Agreement, an upfront fee to the Trustee in connection 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
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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 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
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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
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
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"Mortgage Loan" hereunder for all purposes. A "Defective Mortgage Loan" is any
Mortgage Loan as to which there is an unremedied Material Breach or Material
Document Defect.
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the Mortgage Loan
Seller of notice, of any Material Breach or Material Document Defect with
respect to any Mortgage Loan (or, if such Material Breach or Material Document
Defect, as the case may be, related to whether such Mortgage Loan is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan, as of the
related date of substitution), was a Qualified Mortgage, and provided that the
Mortgage Loan Seller discovered or received prompt written notice thereof,
within 90 days after any earlier discovery by the Mortgage Loan Seller or any
party to the Pooling and Servicing Agreement of such Material Breach or Material
Document Defect, as the case may be) (such 90-day period, in any case, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects, or repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that such Material
Document Defect or Material Breach, as the case may be, does not relate to
whether the affected Mortgage Loan is or, as of the Closing Date (or, in the
case of a Replacement Mortgage Loan, as of the related date of substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect or Material
Breach, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, during the applicable Initial
Resolution Period, and (iv) that such Mortgage Loan Seller anticipates that such
Material Document Defect or Material Breach, as the case may be, will be cured
within an additional 90-day period (such additional 90-day period, the
"Resolution Extension Period"), then the Mortgage Loan Seller shall have an
additional period equal to any such applicable Resolution Extension Period to
complete such correction or cure (or, upon failure to complete such correction
or cure, to repurchase the affected Mortgage Loan); and provided, further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated above (but,
in any event, no later than such repurchase would have to have been completed),
such Mortgage Loan Seller shall be permitted, during the three-month period
following the Startup Day for the REMIC Pool that holds the affected Mortgage
Loan (or during the two-year period following such Startup Day if the affected
Mortgage Loan is a "defective obligation" within the meaning of Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section 1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying 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
8
repurchased or replaced as contemplated by this subsection, the Purchaser or its
designee shall be entitled to designate the account to which funds in the amount
of the applicable Purchase Price or Substitution Shortfall Amount (as the case
may be) are to be wired. Any such repurchase or replacement of a Mortgage Loan
shall be on a whole loan, servicing released basis. Notwithstanding this
subsection, the absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or a lost note affidavit and indemnity with a copy of the
Mortgage Note) and (ii) by the first anniversary of the Closing Date of
originals or copies of the following documents (without the presence of any
factor that reasonably mitigates such absence, non-conformity or irregularity)
or of any Specially Designated Mortgage Loan Document shall be conclusively
presumed to be a Material Document Defect and shall obligate the Mortgage Loan
Seller to cure such Material Document Defect, or, failing that, repurchase the
related Mortgage Loan or REO Mortgage Loan, all in accordance with the
procedures set forth herein: (a) the Mortgage and any separate Assignment of
Leases as described by clauses (ii) and (iii) of the definition of "Mortgage
File"; (b) the title insurance policy as described in clause (viii) of the
definition of "Mortgage File" (or, if the policy has not yet been issued, an
original or copy of a written commitment "marked-up" at the closing of such
Mortgage Loan, interim binder or the pro forma title insurance policy, in each
case evidencing a binding commitment to issue such policy); or (c) the
assignment of Mortgage (and any separate Assignment of Leases) as described by
clause (iv) of the definition of "Mortgage File". For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to the other Mortgage Loan(s) that are a part of such
Cross-Collateralized Group (the "Other Crossed Loans") (without regard to this
paragraph), then the applicable Document Defect or Breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of the above
provisions, and the Mortgage Loan Seller shall be obligated to repurchase or
replace each such Other Crossed Loan in accordance with the provisions above
unless, in the case of such Breach or Document Defect:
(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
9
(B) both of the following conditions would be satisfied if
the Mortgage Loan Seller were to repurchase or replace only the Affected
Loans and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x below the debt service coverage
ratio for the Cross-Collateralized Group (including the Affected
Loan(s)) set forth in Appendix B to the Prospectus Supplement, (B)
the debt service coverage ratio for the Cross-Collateralized Group
(including the Affected Loan(s)) for the four preceding calendar
quarters preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed
Loans is not greater than the greatest of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place), for
the Cross-Collateralized Group (including the Affected Loan(s)) set
forth in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including
the Affected Loan(s)) at the time of repurchase or replacement, and
(C) 75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in which case the
Mortgage Loan Seller shall) cause to be delivered, to the applicable Master
Servicer an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of the Mortgage Loan Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the Purchaser agree
to forbear from enforcing any remedies against the other's Primary Collateral
but each is permitted to exercise remedies against 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
10
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.
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
11
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 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.
12
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;
(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
13
acceptable to the Purchaser, the Underwriters, the Initial Purchasers and the
Rating Agencies (collectively, the "Interested Parties"), and upon which the
Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the
Mortgage Loan Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by the Secretary or an assistant secretary of
the Mortgage Loan Seller, in his or her individual capacity, and dated the
Closing Date, and upon which the Interested Parties may rely, attaching
thereto as exhibits (A) the resolutions of the board of directors of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's entering into
the transactions contemplated by this Agreement and the Indemnification
Agreement, and (B) the organizational documents of the Mortgage Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage
Loan Seller issued by the Secretary of State of the State of Delaware not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v) A Certificate of the Mortgage Loan Seller substantially in
the form of Exhibit D-2 hereto, executed by an executive officer of the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated the
Closing Date, and upon which the Interested Parties may rely;
(vi) The written opinion of in-house counsel for the Mortgage
Loan Seller, dated the Closing Date and addressed to the Interested
Parties and the Trustee, which opinion shall be substantially in the form
of Exhibit D-3A hereto (with such additions, deletions or modifications as
may be required by either Rating Agency);
(vii) A written opinion of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
special counsel for the Mortgage Loan Seller, dated the Closing Date and
addressed to the Interested Parties and the Trustee, which opinion shall
be substantially in the form of Exhibit D-3B hereto (with such additions,
deletions or modifications as may be required by either Rating Agency);
(viii) A letter from Cadwalader, Xxxxxxxxxx & Xxxx LLP, special
counsel for the Mortgage Loan Seller, dated the Closing Date and addressed
to BSCMSI and the Underwriters, which letter shall be substantially in the
form of Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel for the
Mortgage Loan Seller to the Rating Agencies in connection with the
transactions contemplated by this Agreement, including, but not limited
to, with respect to the characterization of the transfer of the Mortgage
Loans hereunder as a true sale, with each such opinion to be addressed to
the other Interested Parties and the Trustee or accompanied by a letter
signed by such counsel stating that the other Interested Parties and the
Trustee may rely on such opinion as if it were addressed to them as of
date thereof;
14
(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 Four Gateway Center, 8th Floor, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx 00000, Attention: Xxxx X. Xxxxxx, 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.
15
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 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
16
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
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]
17
EXECUTION VERSION
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.
PRUDENTIAL MORTGAGE CAPITAL
FUNDING, LLC
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
PMCF MLPA
EXHIBIT A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
BEAR XXXXXXX COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR17
MORTGAGE LOAN SCHEDULE
SELLER CMSA CMSA
LOAN ID ID LOAN NO. PROPERTY NO. PROPERTY NAME (1)
---------------------------------------------------------------------------------------------------------------
6107495 10 10 10-001 32 Sixth Avenue
6107399 13 13 00-000 Xxxx Xxxxx Xxxxxx Xxxx
6107308 14 14 Xxxxxx Portfolio 2
6107308A 14-a 00-000 Xxxxxxxxx Office Center
---------------------------------------------------------------------------------------------------------------
6107308B 14-b 14-002 Treeview Corporate Center
6107308C 14-c 00-000 Xxxxx Xxxx Xxxxxxxx Xxxxxx
6107308D 14-d 00-000 Xxxxxxxxx Xxxxx
6107308E 00-x 00-000 Xxxx Xxxxx
6107451 23 23 23-001 Holiday Inn - Atlanta Downtown
---------------------------------------------------------------------------------------------------------------
6107302 25 25 25-001 Fairlane Xxxxx
6107373 37 37 37-001 TJ Maxx Plaza
6107186 42 42 42-001 Town Center Colleyville
6107326 43 43 00-000 Xxxxxxxxxxxx Portfolio
6107178 47 47 00-000 Xxxxxxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------
6107472 49 49 49-001 Rock Shadows RV Park
6107288 55 55 55-001 Shiloh Crossing
6107405 61 61 00-000 Xxxxxxxxx Business Center
6107404 62 62 62-001 Four Points by Sheraton Southwest Houston
6107312 65 65 65-001 Hampton Inn and Suites - Natomas
---------------------------------------------------------------------------------------------------------------
6107313 66 66 66-001 Holiday Inn Express - Natomas
6107304 69 69 69-001 Maple Brook Apartments
6107322 75 75 Severna Park Portfolio
6107322A 00-x 00-000 Xxxxxxx Xxxx Business Center
6107322B 75-b 00-000 Xxxxxxxxxx Xxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------
6107322C 00-x 00-000 Xxxxxxxxx Station
6107379 82 82 Richmond Apartment Portfolio
6107379A 82-a 82-001 The Chesterfield Apartments
6107379B 82-b 82-002 Stuart Court Apartments
6107388 86 86 86-001 Lucky Center
---------------------------------------------------------------------------------------------------------------
6106927 91 91 00-000 Xxxxxxxxxx Medical Office
6107315 94 94 Rice Creek/Aetrium Portfolio
6107315A 94-a 00-000 Xxxx Xxxxx Xxxxxxxx Xxxxxx XXX
0000000X 94-b 94-002 Aetrium Office Building
6107441 98 98 98-001 Jordan Valley Medical Office
---------------------------------------------------------------------------------------------------------------
6107324 100 100 Baltimore Commons Portfolio
6107324A 100-a 000-000 Xxxxxxxxx Xxxxxxx
6107324B 100-b 100-002 Xxxxx Professional Center
6107324C 000-x 000-000 Xxxxxxxx Xxxxx
0000000X 100-d 100-004 Severn Professional Center
---------------------------------------------------------------------------------------------------------------
6107247 105 105 105-001 2455 Xxxx Flex Building
6107260 106 106 106-001 Malibu East Apartments
6107289 110 110 110-001 Creek Crossing Medical
6107237 112 112 112-001 Ironwood Shopping Center
6106996 116 116 000-000 XxXxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------
6107368 121 121 Timbercreek Xxxxxxxxxxx Portfolio
6107368A 121-a 121-001 Timbercreek Atrium
6107368B 121-b 121-002 The Xxxxxxxxxxx Building
6106979 126 126 000-000 Xxxxxx Xxxxxx
6107452 128 128 128-001 Maple Tree Inn
---------------------------------------------------------------------------------------------------------------
6107248 129 129 129-001 Argonne Flex Building
6107319 130 130 130-001 Xxxxx Xxxx Office/Retail
6107296 134 134 134-001 Opera House
6107317 136 136 136-001 Extra Space Storage
6107305 138 138 138-001 Aspenwood Apartments
---------------------------------------------------------------------------------------------------------------
6106967 146 146 000-000 Xxxxxxx Xxxxx
6107407 148 148 148-001 Quail Valley Apartments
6107258 157 157 157-001 Triad East Office Building
6107323 161 161 Gambrills Business Center & Brightview II
6107323A 161-a 161-001 Gambrills Business Park
---------------------------------------------------------------------------------------------------------------
6107323B 161-b 161-002 Brightview II
6107348 163 163 163-001 Rainbow Diablo Office Building
6107387 183 183 183-001 Blackstone
6107411 186 186 186-001 West Valley City Retail
6107385 231 231 231-001 0000 Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------
6106883 236 236 000-000 XxxxxXxxx Properties
6107386 245 245 245-001 1302 Pico
SELLER
LOAN ID ADDRESS CITY STATE ZIP CODE
-------------------------------------------------------------------------------------------------------------------------------
6107495 00 Xxxxx Xxxxxx Xxx Xxxx XX 00000
6107399 0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000
6107308 Various Xxxxxxx XX Xxxxxxx
0000000X 000 Xxxxxx Xxxxxx Xxxx Xxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107308B Two Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
6107308C 0000-0000 Xxxxxxxxx Xxxxx Xxxx Xxxx XX 00000
6107308D 000 Xxxxxxxxx Xxxxxx Xxxx Xxxx XX 00000
6107308E 0000 Xxxx Xxxxx Xxxxxxxxxx XX 00000
6107451 000 Xxxxxx Xxxxx Xxxxxxxxxxxxx Xxxx. Xxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107302 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
6107373 000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
6107186 5615, 5645, 5655, & 0000 Xxxxxxxxxxx Xxxx. Xxxxxxxxxxx XX 00000
6107326 2825, 2875, 0000 Xxxxxxxxxxxx Xxxxxxxxx Xxxxxx XX 00000
6107178 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107472 000 X. Xxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
6107288 00000 X. XX Xxxxxxx 00 Xxxx XX 00000
6107405 000-000 Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
6107404 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
6107312 0000 Xxxxxxxxx Xxx Xxxxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107313 0000 Xxxxxxxxx Xxx Xxxxxxxxxx XX 00000
6107304 00000 Xxxxx Xxxxx Xxxxx Xxxxxxxxxx XX 00000
6107322 Xxxxxxx Xxxxxxx XX Xxxxxxx
0000000X 000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxx XX 00000
6107322B 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107322C 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
6107379 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
6107379A 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
6107379B 000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
6107388 000-000 X. Xxx Xxxxx Xxxxx Xxx Xxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6106927 000 Xxxx Xxxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000
6107315 Various Various MN Various
6107315A 0000 Xxxx Xxxxx Xxxxxxx Xxxxxxxxx XX 00000
6107315B 0000 Xxxxx Xxxxxx Xx. Xxxx XX 00000
6107441 0000 Xxxx 0000 Xxxxx Xxxx Xxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107324 Various Various MD Various
6107324A 0000 Xxx Xxxxx Xxxx Xxxxxxx XX 00000
6107324B 0000X X. Xxxxx Xxxxxxx Xxxx Xxxxxx XX 00000
6107324C 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
6107324D 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107247 0000 Xxxx Xxxx Xxxxx XX 00000
6107260 0000 Xxxxx Xxxx Xxxxxx Xxxxx Xxxx XX 00000
6107289 000 Xxxxx Xxxxxxxx Xxxx. Xxxxxxxxxx XX 00000
6107237 00000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
6106996 4310-4400 Xxxx Xxx Xxxxxx XxXxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107368 Xxxxxxx Xxxxxxx XX 00000
6107368A 0000 Xxxxxxx 0 Xxxxx Xxxxxxx XX 00000
6107368B 00000 XX 000 Xxxxxxx XX 00000
6106979 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
6107452 000 X Xx Xxxxxx Xxxx Xxxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107248 00000 Xxxxxxx Xxxxx Xxxxx Xxxxxxxxxx XX 00000
6107319 100, 300 & 000 Xxxxxxxxx Xxxx & 000 Xxxx Xxxxx Xxxxxx XX 00000
6107296 00 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
6107317 0000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
6107305 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6106967 0000 Xxxxx Xxxx 000 Xxxxxxx XX 00000
6107407 0000 Xxxxxxxx Xxxx Xxxxxx Xxxx XX 00000
6107258 00000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
6107323 Various Various MD Various
6107323A 000 Xxxxxxxx Xxxxx 0 Xxxxx Xxxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6107323B 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
6107348 0000 Xxxxxxx Xxxxxx Xxx Xxxxx XX 00000
6107387 000-000 Xxxxxxxxxx Xxxxxx Xxxxx XX 00000
6107411 0000 Xxxxx 0000 Xxxx Xxxx Xxxxxx Xxxx XX 00000
6107385 0000-0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
-------------------------------------------------------------------------------------------------------------------------------
6106883 Southeast Corner of Xxxxxxx and Xxxxxxx Xxxxxxx Xxxxxx XX 00000
6107386 1302,1304 & 0000 Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000
MONTHLY MONTHLY
CUT-OFF DEBT DEBT SERVICE FIRST
SELLER ORIGINAL DATE SERVICE AFTER PAYMENT INTEREST
LOAN ID BALANCE ($) BALANCE ($) (3) ($) (4) (5) IO ($) (4) DATE RATE (4)
----------------------------------------------------------------------------------------------------------------------------------
6107495 40,000,000 40,000,000 190,881.48 230,843.75 5/5/2007 5.6480%
6107399 32,000,000 32,000,000 166,548.15 195,160.23 9/5/2007 6.1600%
6107308 29,700,000 29,700,000 155,330.31 181,710.61 9/5/2007 6.1900%
6107308A 9,102,765 9,102,765
----------------------------------------------------------------------------------------------------------------------------------
6107308B 6,711,058 6,711,058
6107308C 6,068,510 6,068,510
6107308D 5,354,567 5,354,567
6107308E 2,463,100 2,463,100
6107451 23,100,000 23,100,000 129,058.55 151,140.88 9/5/2007 6.6125%
----------------------------------------------------------------------------------------------------------------------------------
6107302 22,800,000 22,800,000 122,710.97 142,167.78 8/5/2007 6.3700%
6107373 17,625,000 17,625,000 91,135.94 NAP 9/5/2007 6.1200%
6107186 15,500,000 15,500,000 75,826.22 90,848.04 8/5/2007 5.7900%
6107326 15,480,000 15,480,000 77,167.08 NAP 8/5/2007 5.9000%
6107178 14,720,000 14,720,000 73,005.41 87,027.33 6/5/2007 5.8700%
----------------------------------------------------------------------------------------------------------------------------------
6107472 14,175,000 14,175,000 76,650.00 NAP 9/5/2007 6.4000%
6107288 13,500,000 13,500,000 65,015.63 78,354.06 7/5/2007 5.7000%
6107405 11,900,000 11,900,000 62,739.44 73,192.97 9/5/2007 6.2400%
6107404 11,900,000 11,885,660 78,795.15 NAP 9/5/2007 6.2900%
6107312 11,500,000 11,472,762 76,860.23 NAP 8/5/2007 6.3900%
----------------------------------------------------------------------------------------------------------------------------------
6107313 11,500,000 11,472,707 76,788.72 NAP 8/5/2007 6.3800%
6107304 11,310,000 11,297,830 64,431.50 NAP 8/5/2007 5.9925%
6107322 10,374,000 10,374,000 54,255.78 NAP 8/5/2007 6.1900%
6107322A 4,658,982 4,658,982
6107322B 2,919,629 2,919,629
----------------------------------------------------------------------------------------------------------------------------------
6107322C 2,795,389 2,795,389
6107379 10,000,000 10,000,000 52,299.77 61,182.02 9/5/2007 6.1900%
6107379A 5,770,000 5,770,000
6107379B 4,230,000 4,230,000
6107388 9,677,000 9,677,000 51,509.86 NAP 8/5/2007 6.3000%
----------------------------------------------------------------------------------------------------------------------------------
6106927 8,900,000 8,900,000 43,538.92 52,164.36 5/5/2007 5.7900%
6107315 8,715,000 8,691,144 51,636.09 NAP 7/5/2007 5.8900%
6107315A 6,215,000 6,197,987
6107315B 2,500,000 2,493,157
6107441 8,500,000 8,489,571 55,809.48 NAP 9/5/2007 6.2000%
----------------------------------------------------------------------------------------------------------------------------------
6107324 8,402,000 8,402,000 43,942.27 NAP 8/5/2007 6.1900%
6107324A 4,541,621 4,541,621
6107324B 2,100,500 2,100,500
6107324C 1,021,865 1,021,865
6107324D 738,014 738,014
----------------------------------------------------------------------------------------------------------------------------------
6107247 8,020,000 8,020,000 39,776.04 47,415.70 8/5/2007 5.8700%
6107260 8,000,000 8,000,000 39,609.26 47,246.35 7/5/2007 5.8600%
6107289 7,600,000 7,600,000 47,687.84 NAP 10/5/2007 6.4300%
6107237 7,500,000 7,500,000 37,197.05 44,341.37 7/5/2007 5.8700%
6106996 7,100,000 7,100,000 36,293.00 42,796.59 9/5/2007 6.0500%
----------------------------------------------------------------------------------------------------------------------------------
6107368 6,800,000 6,800,000 36,310.74 42,178.84 10/5/2007 6.3200%
6107368A 3,400,000 3,400,000
6107368B 3,400,000 3,400,000
6106979 6,400,000 6,400,000 30,389.63 36,821.81 2/5/2007 5.6200%
6107452 6,200,000 6,192,484 40,937.83 NAP 9/5/2007 6.2600%
----------------------------------------------------------------------------------------------------------------------------------
6107248 6,150,000 6,150,000 29,150.57 NAP 7/5/2007 5.6100%
6107319 6,114,000 6,114,000 32,286.02 37,644.95 9/5/2007 6.2500%
6107296 6,000,000 6,000,000 30,568.75 36,088.84 7/5/2007 6.0300%
6107317 5,905,500 5,905,500 29,588.33 NAP 7/5/2007 5.9300%
6107305 5,890,000 5,883,662 33,554.51 NAP 8/5/2007 5.9925%
----------------------------------------------------------------------------------------------------------------------------------
6106967 5,600,000 5,600,000 28,294.26 33,502.86 4/5/2007 5.9800%
6107407 5,500,000 5,500,000 28,764.87 33,650.11 9/5/2007 6.1900%
6107258 5,000,000 5,000,000 24,122.11 29,051.71 8/5/2007 5.7100%
6107323 4,940,250 4,940,250 25,837.39 NAP 8/5/2007 6.1900%
6107323A 3,976,299 3,976,299
----------------------------------------------------------------------------------------------------------------------------------
6107323B 963,951 963,951
6107348 4,750,000 4,750,000 24,962.79 29,153.95 9/5/2007 6.2200%
6107387 3,821,000 3,821,000 20,209.73 NAP 8/5/2007 6.2600%
6107411 3,750,000 3,750,000 20,151.04 23,358.34 9/5/2007 6.3600%
6107385 2,645,000 2,645,000 13,945.03 NAP 8/5/2007 6.2400%
----------------------------------------------------------------------------------------------------------------------------------
6106883 2,438,111 2,429,852 15,271.88 NAP 6/5/2007 6.3500%
6107386 1,975,000 1,975,000 10,412.64 NAP 8/5/2007 6.2400%
INTEREST MATURITY ARD ORIGINAL STATED REMAINING
SELLER ACCRUAL DATE LOAN TERM TO MATURITY TERM TO MATURITY
LOAN ID BASIS OR ARD (Y/N) OR ARD (MOS.) OR ARD (MOS.)
------------------------------------------------------------------------------------------------------------------------------
6107495 Actual/360 4/5/2017 No 120 115
6107399 Actual/360 8/5/2017 No 120 119
6107308 Actual/360 8/5/2017 No 120 119
6107308A
------------------------------------------------------------------------------------------------------------------------------
6107308B
6107308C
6107308D
6107308E
6107451 Actual/360 8/5/2014 No 84 83
------------------------------------------------------------------------------------------------------------------------------
6107302 Actual/360 7/5/2017 No 120 118
6107373 Actual/360 8/5/2017 No 120 119
6107186 Actual/360 7/5/2017 No 120 118
6107326 Actual/360 7/5/2017 No 120 118
6107178 Actual/360 5/5/2017 No 120 116
------------------------------------------------------------------------------------------------------------------------------
6107472 Actual/360 8/5/2017 No 120 119
6107288 Actual/360 6/5/2017 No 120 117
6107405 Actual/360 8/5/2017 No 120 119
6107404 Actual/360 8/5/2017 No 120 119
6107312 Actual/360 7/5/2017 No 120 118
------------------------------------------------------------------------------------------------------------------------------
6107313 Actual/360 7/5/2017 No 120 118
6107304 Actual/360 7/5/2017 No 120 118
6107322 Actual/360 7/5/2017 No 120 118
6107322A
6107322B
------------------------------------------------------------------------------------------------------------------------------
6107322C
6107379 Actual/360 8/5/2017 No 120 119
6107379A
6107379B
6107388 Actual/360 7/5/2012 No 60 58
------------------------------------------------------------------------------------------------------------------------------
6106927 Actual/360 4/5/2017 No 120 115
6107315 Actual/360 6/5/2017 No 120 117
6107315A
6107315B
6107441 Actual/360 8/5/2017 No 120 119
------------------------------------------------------------------------------------------------------------------------------
6107324 Actual/360 7/5/2017 No 120 118
6107324A
6107324B
6107324C
6107324D
------------------------------------------------------------------------------------------------------------------------------
6107247 Actual/360 7/5/2017 No 120 118
6107260 Actual/360 6/5/2017 No 120 117
6107289 Actual/360 9/5/2017 No 120 120
6107237 Actual/360 6/5/2017 No 120 117
6106996 Actual/360 8/5/2017 No 120 119
------------------------------------------------------------------------------------------------------------------------------
6107368 Actual/360 9/5/2017 No 120 120
6107368A
6107368B
6106979 Actual/360 1/5/2017 No 120 112
6107452 Actual/360 8/5/2017 No 120 119
------------------------------------------------------------------------------------------------------------------------------
6107248 Actual/360 6/5/2017 No 120 117
6107319 Actual/360 8/5/2017 No 120 119
6107296 Actual/360 6/5/2017 No 120 117
6107317 Actual/360 6/5/2012 No 60 57
6107305 Actual/360 7/5/2017 No 120 118
------------------------------------------------------------------------------------------------------------------------------
6106967 Actual/360 3/5/2017 No 120 114
6107407 Actual/360 8/5/2017 No 120 119
6107258 Actual/360 7/5/2017 No 120 118
6107323 Actual/360 7/5/2017 No 120 118
6107323A
------------------------------------------------------------------------------------------------------------------------------
6107323B
6107348 Actual/360 8/5/2017 No 120 119
6107387 Actual/360 7/5/2017 No 120 118
6107411 Actual/360 8/5/2017 No 120 119
6107385 Actual/360 7/5/2017 No 120 118
------------------------------------------------------------------------------------------------------------------------------
6106883 Actual/360 10/5/2016 No 113 109
6107386 Actual/360 7/5/2017 No 120 118
ORIGINAL REMAINING REMAINING CROSSED PREPAYMENT
SELLER AMORTIZATION AMORTIZATION INTEREST ONLY WITH PROVISIONS
LOAN ID TERM (MOS.) (4) TERM (MOS.) (4) PERIOD (MOS.) OTHER LOANS (# OF PAYMENTS) (8)
------------------------------------------------------------------------------------------------------------------------------------
6107495 360 360 55 LO(48)/GRTR1% or YM(69)/Open(3)
6107399 360 360 23 LO(26)/Defeasance(92)/Open(2)
6107308 360 360 23 LO(47)/GRTR1% or YM(71)/Open(2)
6107308A
------------------------------------------------------------------------------------------------------------------------------------
6107308B
6107308C
6107308D
6107308E
6107451 336 336 29 LO(23)/GRTR1% or YM(58)/Open(3)
------------------------------------------------------------------------------------------------------------------------------------
6107302 360 360 34 LO(27)/Defeasance(91)/Open(2)
6107373 0 0 119 LO(26)/Defeasance(92)/Open(2)
6107186 360 360 58 LO(27)/Defeasance(91)/Open(2)
6107326 0 0 118 LO(27)/Defeasance(90)/Open(3)
6107178 360 360 56 LO(47)/GRTR1% or YM(71)/Open(2)
------------------------------------------------------------------------------------------------------------------------------------
6107472 0 0 119 LO(26)/Defeasance(92)/Open(2)
6107288 360 360 57 LO(28)/Defeasance(90)/Open(2)
6107405 360 360 59 LO(26)/Defeasance(92)/Open(2)
6107404 300 299 0 LO(26)/Defeasance(92)/Open(2)
6107312 300 298 0 LO(27)/GRTR1% or YM(91)/Open(2)
------------------------------------------------------------------------------------------------------------------------------------
6107313 300 298 0 LO(27)/GRTR1% or YM(91)/Open(2)
6107304 420 418 0 LO(27)/Defeasance(91)/Open(2)
6107322 0 0 118 LO(27)/Defeasance(91)/Open(2)
6107322A
6107322B
------------------------------------------------------------------------------------------------------------------------------------
6107322C
6107379 360 360 35 LO(26)/Flex(92)/Open(2)
6107379A
6107379B
6107388 0 0 58 LO(47)/GRTR1% or YM(10)/Open(3)
------------------------------------------------------------------------------------------------------------------------------------
6106927 360 360 31 LO(30)/Defeasance(87)/Open(3)
6107315 360 357 0 LO(28)/Defeasance(90)/Open(2)
6107315A
6107315B
6107441 300 299 0 LO(26)/Defeasance(92)/Open(2)
------------------------------------------------------------------------------------------------------------------------------------
6107324 0 0 118 LO(27)/Defeasance(91)/Open(2)
6107324A
6107324B
6107324C
6107324D
------------------------------------------------------------------------------------------------------------------------------------
6107247 360 360 46 LO(27)/Defeasance(89)/Open(4)
6107260 360 360 45 LO(28)/Defeasance(90)/Open(2)
6107289 360 360 0 LO(47)/GRTR1% or YM(71)/Open(2)
6107237 360 360 57 LO(28)/Defeasance(90)/Open(2)
6106996 360 360 35 LO(26)/Defeasance(92)/Open(2)
------------------------------------------------------------------------------------------------------------------------------------
6107368 360 360 60 LO(25)/GRTR1% or YM(93)/Open(2)
6107368A
6107368B
6106979 360 360 52 GRTR1% or YM(118)/Open(2)
6107452 300 299 0 LO(26)/Defeasance(92)/Open(2)
------------------------------------------------------------------------------------------------------------------------------------
6107248 0 0 117 LO(28)/Defeasance(88)/Open(4)
6107319 360 360 23 LO(26)/Defeasance(92)/Open(2)
6107296 360 360 33 LO(47)/GRTR1% or YM(71)/Open(2)
6107317 0 0 57 LO(28)/Defeasance(30)/Open(2)
6107305 420 418 0 LO(27)/Defeasance(91)/Open(2)
------------------------------------------------------------------------------------------------------------------------------------
6106967 360 360 54 LO(47)/GRTR1% or YM(71)/Open(2)
6107407 360 360 35 LO(26)/Defeasance(92)/Open(2)
6107258 360 360 34 LO(47)/GRTR1% or YM(71)/Open(2)
6107323 0 0 118 LO(27)/Defeasance(91)/Open(2)
6107323A
------------------------------------------------------------------------------------------------------------------------------------
6107323B
6107348 360 360 35 LO(26)/GRTR1% or YM(92)/Open(2)
6107387 0 0 118 LO(47)/GRTR1% or YM(70)/Open(3)
6107411 360 360 23 LO(25)/GRTR1% or YM(93)/Open(2)
6107385 0 0 118 LO(47)/GRTR1% or YM(70)/Open(3)
------------------------------------------------------------------------------------------------------------------------------------
6106883 353 349 0 LO(29)/Defeasance(82)/Open(2)
6107386 0 0 118 LO(47)/GRTR1% or YM(70)/Open(3)
MORTGAGE
SELLER OWNERSHIP LOAN ADMINISTRATIVE PAYMENT PAYMENT GRACE PERIOD
LOAN ID INTEREST SELLER (2) FEE RATE DATE EVENT OF LATE FEE (DAYS)
------------------------------------------------------------------------------------------------------------------------------
6107495 Fee PMCF 0.02123% 5th 0
6107399 Fee PMCF 0.02123% 5th 0
6107308 Fee PMCF 0.02123% 5th 0
6107308A Fee PMCF
------------------------------------------------------------------------------------------------------------------------------
6107308B Fee PMCF
6107308C Fee PMCF
6107308D Fee PMCF
6107308E Fee PMCF
6107451 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6107302 Fee PMCF 0.02123% 5th 0
6107373 Fee PMCF 0.02123% 5th 0
6107186 Fee PMCF 0.02123% 5th 0
6107326 Fee PMCF 0.02123% 5th 0
6107178 Fee PMCF 0.07123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6107472 Fee PMCF 0.05123% 5th 0
6107288 Fee PMCF 0.02123% 5th 0
6107405 Fee PMCF 0.04123% 5th 0
6107404 Fee PMCF 0.02123% 5th 0
6107312 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6107313 Fee PMCF 0.02123% 5th 0
6107304 Fee PMCF 0.02123% 5th 0
6107322 Fee PMCF 0.02123% 5th 0
6107322A Fee PMCF
6107322B Fee PMCF
------------------------------------------------------------------------------------------------------------------------------
6107322C Fee PMCF
6107379 Fee PMCF 0.02123% 5th 0
6107379A Fee PMCF
6107379B Fee PMCF
6107388 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6106927 Fee PMCF 0.07123% 5th 0
6107315 Fee PMCF 0.02123% 5th 0
6107315A Fee PMCF
6107315B Fee PMCF
6107441 Fee PMCF 0.07123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6107324 Fee PMCF 0.02123% 5th 0
6107324A Fee PMCF
6107324B Fee PMCF
6107324C Fee PMCF
6107324D Fee PMCF
------------------------------------------------------------------------------------------------------------------------------
6107247 Fee PMCF 0.02123% 5th 0
6107260 Fee PMCF 0.02123% 5th 0
6107289 Fee PMCF 0.02123% 5th 0
6107237 Fee PMCF 0.02123% 5th 0
6106996 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6107368 Fee PMCF 0.02123% 5th 0
6107368A Fee PMCF
6107368B Fee PMCF
6106979 Fee PMCF 0.02123% 5th 0
6107452 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6107248 Fee PMCF 0.02123% 5th 0
6107319 Fee PMCF 0.02123% 5th 0
6107296 Fee PMCF 0.07123% 5th 0
6107317 Fee PMCF 0.02123% 5th 0
6107305 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6106967 Fee PMCF 0.02123% 5th 0
6107407 Fee PMCF 0.06123% 5th 0
6107258 Fee PMCF 0.05123% 5th 0
6107323 Fee PMCF 0.02123% 5th 0
6107323A Fee PMCF
------------------------------------------------------------------------------------------------------------------------------
6107323B Fee PMCF
6107348 Fee PMCF 0.02123% 5th 0
6107387 Fee PMCF 0.02123% 5th 0
6107411 Fee PMCF 0.02123% 5th 0
6107385 Fee PMCF 0.02123% 5th 0
------------------------------------------------------------------------------------------------------------------------------
6106883 Fee PMCF 0.02123% 5th 0
6107386 Fee PMCF 0.02123% 5th 0
SELLER LETTER OF
LOAN ID CREDIT BORROWER
----------------------------------------------------------------------------------------------------------------------------
6107495 00 Xxxxx Xxxxxx Company LLC
6107399 Tech Ridge Properties, L.P.
6107308 Xxxxxx Building & Leasing, L.P.
6107308A
----------------------------------------------------------------------------------------------------------------------------
6107308B
6107308C
6107308D
6107308E
6107451 Atlanta Downtown Hotel, LLC
----------------------------------------------------------------------------------------------------------------------------
6107302 Fairlane Rental Properties Limited Partnership
6107373 TJ Middlesex LLC and TJ Middlesex II LLC
6107186 Xxxxxx & Xxxxxxxxxx II, LTD.
6107326 Leasing Reserve (500,000 LOC), Breckinridge II LP
Replacement Reserve (100,000 LOC)
6107178 Montlimar Operating LLC
----------------------------------------------------------------------------------------------------------------------------
6107472 Xxxxxxxx Group, L.L.C.
6107288 Shiloh Venture LLC
6107405 Tax ($110,000 LOC) 46.21 Associates, L.P., 46.22 Associates, L.P.
6107404 Khanna Enterprises, LP
6107312 Geweke Natomas 11, L.P.
----------------------------------------------------------------------------------------------------------------------------
6107313 Geweke Natomas 9, L.P.
6107304 Maple Ventures, LLC
6107322 GWS Assets Financial, LLC
6107322A
6107322B
----------------------------------------------------------------------------------------------------------------------------
6107322C
6107379 NWJ Chesterfield Apartments LLC; Stuart Court Apartments, LLC
6107379A
6107379B
6107388 The Lucky Center, LLC
----------------------------------------------------------------------------------------------------------------------------
6106927 NCOI 1, Ltd.
6107315 Triple Shot, LLC
6107315A
6107315B
6107441 Tegra Jordan Valley Owner, L.C.
----------------------------------------------------------------------------------------------------------------------------
6107324 CBSV Financial, LLC
6107324A
6107324B
6107324C
6107324D
----------------------------------------------------------------------------------------------------------------------------
6107247 Alft in Elgin, LLC, XXX Xxxx, LLC
6107260 Malibu East, LLC
6107289 Creek Crossing II LLC
6107237 Ironwood Community Plaza, LLC
6106996 4310-4400 XxXxxxx Plaza, LLC
----------------------------------------------------------------------------------------------------------------------------
6107368 Xxxxxxxxxxx Timbercreek Atrium LLC
6107368A
6107368B
6106979 Kenley Square-B, LLC
6107452 Maple Tree Investors, A California Limited Partnership
----------------------------------------------------------------------------------------------------------------------------
6107248 Argonne Bridge, LLC and JES Argonne Bridge LLC
6107319 Xxxxx Xxxx Associates, LLC
6107296 Xxxxxx-Opera House, LLC
6107317 C and B Building, LLC
6107305 Aspenwood Apartments, LLC
----------------------------------------------------------------------------------------------------------------------------
6106967 BIG Pyramid Plaza, LLC; BIG Pyramid Plaza TIC, LLC; BIG Pyramid
Plaza TIC 1, LLC; BIG Pyramid Plaza TIC 2, LLC; BIG Pyramid Plaza TIC 4,
LLC; BIG Pyramid Plaza TIC 5, LLC; BIG Pyramid Plaza TIC 6, LLC; BIG
Pyramid Plaza TIC 7, LLC; BIG Pyramid Plaza TIC 8, LLC; BIG Pyramid Plaza
TIC 9, LLC; BIG Pyramid Plaza TIC 10, LLC; BIG Pyramid Plaza TIC 11, LLC;
BIG Pyramid Plaza TIC 12, LLC; BIG Pyramid Plaza TIC 13, LLC; BIG
Pyramid Plaza TIC 14, LLC; BIG Pyramid Plaza TIC 15, LLC
6107407 Quail Valley, L.P.
6107258 Tomorrow IX Triad L.P.
6107323 Stone GBC and BV, LLC
6107323A
----------------------------------------------------------------------------------------------------------------------------
6107323B
6107348 Rainbow MOB 5555, LLC
6107387 Blackstone Associates, Ltd.
6107411 Real Estate Investment Partners, LLC
6107385 1055 Xxxxxxx Associates, LLC
----------------------------------------------------------------------------------------------------------------------------
6106883 Block 64, LLC
6107386 0000 Xxxx Xxxx. Associates, LLC
NON-TRUST-SERVICED NON-TRUST-SERVICED
SELLER MASTER MASTER SERVICER LOAN GROUP POOLED MORTGAGE LOAN POOLED MORTGAGE LOAN
LOAN ID SERVICER FEE RATE (ONE OR TWO) APPLICABLE RATE ACCRUAL
------------------------------------------------------------------------------------------------------------------------------------
6107495 Prudential Asset Resources, Inc. 0.02050% 1 See PWR16 See PWR16
6107399 Prudential Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
6107308A
------------------------------------------------------------------------------------------------------------------------------------
6107308B
6107308C
6107308D
6107308E
6107451 Prudential Asset Resources, Inc. 0.02050% 1
------------------------------------------------------------------------------------------------------------------------------------
6107302 Prudential Asset Resources, Inc. 0.02050% 2
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.07050% 1
------------------------------------------------------------------------------------------------------------------------------------
6107472 Prudential Asset Resources, Inc. 0.05050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.04050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 1
------------------------------------------------------------------------------------------------------------------------------------
6107313 Prudential Asset Resources, Inc. 0.02050% 1
0000000 Xxxxxxxxxx Asset Resources, Inc. 0.02050% 2
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6107322C
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6107323B
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Ex. A-1
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOAN SELLER
The Mortgage Loan Seller hereby represents and warrants that, as of
the Closing Date:
(a) The Mortgage Loan Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) The Mortgage Loan Seller's execution and delivery of,
performance under, and compliance with this Agreement, will not violate the
Mortgage Loan Seller's organizational documents or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default or
breach, in the good faith and reasonable judgment of the Mortgage Loan Seller,
is likely to affect materially and adversely the ability of the Mortgage Loan
Seller to perform its obligations under this Agreement.
(c) The Mortgage Loan Seller has the full power and authority to
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement.
(d) This Agreement, assuming due authorization, execution and
delivery by the other party or parties hereto, constitutes a valid, legal and
binding obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(e) The Mortgage Loan Seller is not in violation of, and its
execution and delivery of, performance under and compliance with this Agreement
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Mortgage Loan
Seller's good faith and reasonable judgment, is likely to affect materially and
adversely the ability of the Mortgage Loan Seller to perform its obligations
under this Agreement.
(f) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the consummation by
the Mortgage Loan Seller of the transactions contemplated herein, except for (A)
those consents, approvals, authorizations or orders that previously have been
obtained and (B) those filings and recordings of Mortgage Loan Documents and
assignments thereof that are contemplated by the Pooling and Servicing Agreement
to be completed after the Closing Date.
(g) No litigation, arbitration, suit, proceeding or governmental
investigation is pending or, to the best of the Mortgage Loan Seller's
knowledge, threatened against the Mortgage Loan Seller that, if determined
adversely to the Mortgage Loan Seller, would prohibit
Ex. B-1-1
the Mortgage Loan Seller from entering into this Agreement or that, in the
Mortgage Loan Seller's good faith and reasonable judgment, is likely to
materially and adversely affect the ability of the Mortgage Loan Seller to
perform its obligations under this Agreement.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
(i) The Mortgage Loan Seller is not transferring the Mortgage
Loans to the Purchaser with any intent to hinder, delay or defraud its present
or future creditors.
(j) The Mortgage Loan Seller will be solvent at all relevant times
prior to, and will not be rendered insolvent by, its transfer of the Mortgage
Loans to the Purchaser, as contemplated herein.
(k) After giving effect to its transfer of the Mortgage Loans to
the Purchaser, as provided herein, the value of the Mortgage Loan Seller's
assets, either taken at their present fair saleable value or at fair valuation,
will exceed the amount of the Mortgage Loan Seller's debts and obligations,
including contingent and unliquidated debts and obligations of the Mortgage Loan
Seller, and the Mortgage Loan Seller will not be left with unreasonably small
assets or capital with which to engage in and conduct its business.
(l) The Mortgage Loan Seller does not intend to, and does not
believe that it will, incur debts or obligations beyond its ability to pay such
debts and obligations as they mature.
(m) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Mortgage Loan Seller are pending or contemplated.
(n) The principal place of business and chief executive office of
the Mortgage Loan Seller is located in the State of New Jersey.
(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
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 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
Ex. C-1
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 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
Ex. C-2
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 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
Ex. C-3
engineering reports referred to in the first sentence of this Paragraph 7 was
prepared more than 18 months prior to the Closing Date. As of the date hereof,
the Mortgage Loan Seller has no knowledge of any proceeding pending or written
notice of any proceeding threatened for the condemnation of all or any material
portion of the Mortgaged Property securing any Mortgage Loan. To the Mortgage
Loan Seller's knowledge (based solely on surveys (if any) and/or the lender's
title policy (or, if such policy is not yet issued, a pro forma title policy, a
preliminary title policy with escrow instructions or a "marked up" commitment)
obtained in connection with the origination of each Mortgage Loan), as of the
date of the origination of each Mortgage Loan, (a) all of the improvements on
the related Mortgaged Property considered material in determining the appraised
value of the Mortgaged Property at origination lay wholly within the boundaries
and, to the extent in effect at the time of construction, building restriction
lines of such property, except for encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current principal
use of such Mortgaged Property, and (b) no improvements on adjoining properties
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association lender's title insurance
policy or a comparable form of lender's title insurance policy approved for use
in the applicable jurisdiction (the "Title Policy") (or, if such policy is yet
to be issued, by a pro forma policy, a preliminary title policy with escrow
instructions or a "marked up" commitment binding on the title insurer) in the
original principal amount of such Mortgage Loan after all advances of principal,
insuring that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to any Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid and, to the
Mortgage Loan Seller's knowledge, no material claims have been made thereunder
and no claims have been paid thereunder. Neither the Mortgage Loan Seller, nor
to the Mortgage Loan Seller's knowledge, any other holder of the Mortgage Loan
has done, by act or omission, anything that would materially impair the coverage
under such Title Policy. Immediately following the transfer and assignment of
the related Mortgage Loan to the Trustee (including endorsement and delivery of
the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Policy (or, if it has yet to be issued, the coverage to be
provided thereby) will inure to the benefit of the Trustee without the consent
of or notice to the insurer. Such Title Policy contains no exclusion for, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative 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.
Ex. C-4
10. Mortgage Provisions. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located).
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Mortgage Loan Seller, the
Purchaser or any transferee thereof except in connection with a trustee's sale
after default by the related Borrower or such customary fee, as may be payable,
in connection with any full or partial release of the related Mortgaged Property
or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgage
Loans identified on Schedule C to this Agreement as Property Condition or
Engineering Report Loans, where the environmental assessment with respect to
lead based paint, asbestos containing materials, and radon gas was included in
the Property Condition or Engineering Report, with respect to each Mortgaged
Property (a) an environmental site assessment or an environmental site
assessment update (each, an "Environmental Assessment") was performed by an
independent third party environmental consultant with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) a report of each such Environmental Assessment or, in the
case of a Property Condition or Engineering Report Loan, the applicable Property
Condition or Engineering Report, if any (each, an "Environmental Report"), is
dated no earlier than twelve (12) months prior to the Closing Date and has been
delivered to the Purchaser, and (c) either (i) no such Environmental Report, if
any, provides that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such material violation of applicable
environmental laws with respect to any known circumstances or conditions
relating to the related Mortgaged Property and the same has 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
Ex. C-5
Loan, (F) there exists an escrow of funds reasonably estimated by the Mortgage
Loan Seller to be sufficient for purposes of effecting such remediation, (G) the
related Borrower or other responsible party is currently taking such actions, if
any, with respect to such circumstances or conditions as have been required by
the applicable governmental regulatory authority or recommended by the
environmental site assessment, (H) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such circumstances
and conditions or (I) a responsible party provided a guaranty or indemnity to
the related Borrower and/or the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation and, as of the date of
origination of the related Mortgage Loan, such responsible party had, in the
Mortgage Loan Seller's sole discretion, an appropriate net worth, or the
financial ability to pay or perform all of its obligations under such guaranty
or indemnity, in light of such material violation of applicable environmental
laws with respect to such known circumstances or conditions relating to the
related Mortgaged Property. To the Mortgage Loan Seller's knowledge, there are
no significant or material circumstances or conditions with respect to such
Mortgaged Property not revealed in any such Environmental Report, where
obtained, or in any Borrower questionnaire delivered to Mortgage Loan Seller in
connection with the issuance of any related environmental insurance policy, if
applicable, that render such Mortgaged Property in material violation of any
applicable environmental laws. For the Mortgaged Properties identified on
Schedule C (Representation 12) to this Agreement, the Mortgage Loan Seller
required the related Borrower to deliver, or the Mortgage Loan Seller itself
obtained, a secured creditor impaired property insurance policy naming the
Mortgage Loan Seller and its successors and/or assigns as a loss payee (a
"Secured Creditor Policy") or a pollution legal liability policy naming the
Mortgage Loan Seller and its successors and/or assigns as an additional insured
(a "PLL Policy"; a Secured Creditor Policy or a PLL Policy, an "Environmental
Policy") (provided that a Mortgaged Property will not be identified on Schedule
C (Representation 12) to this Agreement unless the applicable Environmental
Policy was obtained to specifically address an environmental concern or in lieu
of obtaining a Phase I environmental assessment or conducting additional
environmental testing); such Environmental Policy has been issued by an 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)
Ex. C-6
provides for a deductible and the amount of that deductible is held in escrow.
Each Environmental Policy covering a Mortgaged Property identified on Schedule C
(Representation 12) to this Agreement that constitutes a PLL Policy (1) has a
term that is co-terminous with the Stated Maturity Date (or, in the case of an
ARD Loan, the Anticipated Repayment Date) of the related Mortgage Loan, (2)
provides for a deductible in an amount reasonably acceptable to the Mortgage
Loan Seller and (3) is in an amount reasonably acceptable to the Mortgage Loan
Seller. The Mortgage for each Mortgage Loan encumbering the related Mortgaged
Property or other related loan documents require the related Borrower to comply
with all applicable federal, state and local environmental laws and regulations.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement executed by or on behalf of the related Borrower with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, fraudulent
transfer, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law), and
except that certain provisions in such loan documents may be further limited or
rendered unenforceable by applicable law, but (subject to the limitations set
forth in the foregoing clauses (i) and (ii)) such limitations or
unenforceability will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. Except as set forth in the
immediately preceding sentence, there was no valid offset, defense, counter
claim or right of rescission available to the related Borrower with respect to
any of the related Mortgage Notes, Mortgages or other loan documents, including,
without limitation, any 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
Ex. C-7
hazard insurance policies described above contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee as an additional insured in the case of liability
insurance policies or as a loss payee in the case of property insurance
policies, and are not terminable (nor may the amount of coverage provided
thereunder be reduced) without prior written notice to the mortgagee; and no
such notice has been received, including any notice of nonpayment of premiums,
that has not been cured. Except under circumstances that would be reasonably
acceptable to a prudent commercial mortgage lender, the Mortgage for each
Mortgage Loan provides that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of the related Mortgaged Property or to the payment of amounts
due under such Mortgage Loan; provided that the related Mortgage may entitle the
related Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). Each Mortgage requires that the Borrower or a tenant of the
Borrower maintain insurance as described above or permits the mortgagee to
require insurance or self-insurance as described above, and permits the
mortgagee to purchase such insurance at the Borrower's expense if Borrower fails
to do so or provides that the mortgagee has the general right to cure defaults
of the Borrower. Each Mortgaged Property is also covered by comprehensive
general liability insurance in an amount at least equal to $1 million. If any
material part of the improvements, exclusive of a parking lot, located on a
Mortgaged 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.
Ex. C-8
17. Local Law Compliance. To the Mortgage Loan Seller's knowledge,
based upon any of a letter from governmental authorities, a legal opinion, an
architect's letter, a zoning consultant's report, an endorsement to the related
title policy, or based on such other due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the subject
Mortgaged Property is located (including, without limitation, when commercially
reasonable, a representation of the related Borrower at the time of origination
of the subject Mortgage Loan), the improvements located on or forming part of
each Mortgaged Property securing a Mortgage Loan are in material compliance with
applicable zoning laws and ordinances or constitute a legal non-conforming use
or structure (or, if any such improvement does not so comply and does not
constitute a legal non-conforming use or structure, such non-compliance and
failure does not materially and adversely affect (i) the value of the related
Mortgaged Property as determined by the appraisal performed in connection with
the origination of such Mortgage Loan; or (ii) the principal use of the
Mortgaged Property as of the date of the origination of such Mortgage Loan). As
of the date of origination, with respect to each legal non-conforming use or
structure, the originator determined (based on either (x) any of a review of the
applicable zoning law, a letter from a governmental authority, a legal opinion,
an architect's letter, a zoning consultant's report, an endorsement to the
related title policy or a combination of the foregoing or (y) due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located) that if a casualty occurred at
that time, the Mortgaged Property could 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
Ex. C-9
amounts owed thereunder have been paid). If required by such Ground Lease, the
lessor has received notice of the lien of the related Mortgage in accordance
with the provisions of such Ground Lease;
(d) The related ground lessor has agreed to provide the holder of
the Mortgage Loan notice and the holder of such Mortgage Loan is permitted a
reasonable time to cure any default or breach by the lessee thereunder,
including such time as is necessary to gain possession of the Mortgaged
Property, by foreclosure or otherwise, if possession is necessary to effect such
cure, before the lessor thereunder may terminate such Ground Lease;
(e) In connection with the origination of such Mortgage Loan, the
related ground lessor provided an estoppel to the originator confirming that the
related Borrower was not then in default under such Ground Lease; such Ground
Lease provides that no notice of termination given under such Ground Lease is
effective against the mortgagee under such Mortgage Loan unless a copy has been
delivered to the mortgagee; the Mortgage Loan Seller has not received any
written notice of default under or termination of such Ground Lease; to the
Mortgage 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
Ex. C-10
(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
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
Ex. C-11
mortgage liens junior to or of equal priority with the liens of the related
Mortgage. Each of the related Mortgage Loan Documents requires the Borrower to
pay all reasonable costs and expenses related to obtaining consent to an
encumbrance.
24. No Mechanics' Liens. As of the date of origination and, to the
Mortgage Loan Seller's knowledge, as of the Closing Date, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
is free and clear of any and all mechanics' and materialmen's liens that are
prior or equal to the lien of the related Mortgage and that are not bonded or
escrowed for or covered by title insurance; and, to the Mortgage Loan Seller's
knowledge, no rights are outstanding that under law could give rise to any such
lien that would be prior or equal to the lien of the related Mortgage and that
is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Mortgage Loan Seller's knowledge,
as of the date of origination of each Mortgage Loan, and based on any of: (i) a
letter from governmental authorities, (ii) a legal opinion, (iii) an endorsement
to the related Title Policy, (iv) a representation of the related borrower at
the time of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the Borrower was in possession of all material
licenses, permits and franchises required by applicable law for the ownership
and operation of the related Mortgaged Property as it was then operated or such
material licenses, permits and franchises have otherwise been issued, and, as of
the Cut-Off Date, the Mortgage Loan Seller has no written notice that the
related Borrower was not in possession of such licenses, permits and franchises
or that such licenses, permits and franchises have not otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
U.S. "government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Cross-Collateralized Mortgage Loans
and the other individual Mortgage Loans secured by multiple parcels may require
the respective mortgagee(s) to grant releases of portions of the related
Mortgaged Property or the release of one or more related Mortgaged Properties
upon (i) the satisfaction of certain legal and underwriting requirements, (ii)
the payment of a release price and, if so provided in the related Mortgage Loan
Documents, prepayment consideration in connection therewith or (iii) the
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
Ex. C-12
release or substitution of collateral, as contemplated by the provisos to the
immediately preceding sentence, either: (a) such release or substitution of
collateral (i) would not constitute a "significant modification" of the subject
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2)
and (ii) would not cause the subject Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3)(A) of the Code; or (b) the
mortgagee or servicer can, in accordance with the related Mortgage Loan
Documents, condition such release or substitution of collateral on the related
Borrower's delivery of an opinion of tax counsel to the effect specified in the
immediately preceding clause (a).
29. Defeasance. If such Mortgage Loan contains a provision for any
defeasance of mortgage collateral, such Mortgage Loan either (A) (1) permits
defeasance no earlier than two years after the Closing Date, (2) permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(i), in an
amount sufficient to make all scheduled payments under the Mortgage Note and (3)
has been transferred by the Mortgage Loan Seller with the intent that the
defeasance provision not be utilized (x) for any reason other than to facilitate
the disposition of the Mortgaged Property or any other customary commercial
transaction or (y) as a part of an arrangement to collateralize a REMIC offering
with obligations that are not real estate mortgages or (B) requires that a legal
opinion or opinions be delivered with respect to the defeasance that states
subject to customary assumptions and qualifications that the holder of the such
Mortgage Loan has a first priority perfected security interest in the defeasance
collateral and that the defeasance will not cause the Trust to fail to qualify
as a REMIC as defined in the REMIC Provisions (the "Legal Opinion"). The related
Mortgage Loan Documents enable the lender to charge the Borrower for the
expenses associated with permitting a defeasance and provide for the following
items (or otherwise contain provisions pursuant to which the holder can require
such items): (a) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan for the
remainder of its term, (b) the Legal Opinion, and (c) a letter or other written
evidence from the Rating Agencies to the effect that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings assigned to
the Certificates.
30. Fixed Rate Loan. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
31. Inspection. Each related Mortgaged Property was inspected by
or on behalf of the related originator or an affiliate during the 12 month
period prior to the related origination date.
32. No Material Default. To the Mortgage Loan Seller's knowledge,
there exists no material default, breach, violation or event of acceleration
under the 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
Ex. C-13
behalf of the Mortgage Loan Seller has accelerated the Mortgage Loan or
commenced judicial or non-judicial foreclosure proceedings with respect to the
Mortgage Loan.
33. Due-on-Sale. Except for transfers to specific parties that are
identified and pre-approved in the Mortgage Loan Documents and except with
respect to certain transfers by reason of family and estate planning and/or a
substitution or release of collateral within the parameters of Paragraph 28
above, each Mortgage contains a "due on sale" clause which expressly or
effectively provides for the acceleration of the payment of the unpaid principal
balance and accrued interest of the related Mortgage Loan if, without the prior
written consent of the holder of such Mortgage and/or the satisfaction of
specified criteria set forth in the related Mortgage Loan Documents, the
property subject to the Mortgage or any material portion thereof, or any
controlling interest in the Borrower is directly or indirectly transferred, sold
or pledged; provided, however, that certain Mortgage Loans provide a mechanism
for the assumption of the loan by a third party upon the Borrower's satisfaction
of certain conditions precedent, and upon payment of a transfer fee, if any, or
transfer of interests in the Borrower or constituent entities of the Borrower to
a third party or parties related to the Borrower upon the Borrower's
satisfaction of certain conditions precedent.
34. Single Purpose Entity. The Borrower on each Mortgage Loan with
a Cut-off Date Principal Balance of $10,000,000 or more, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Mortgaged Properties,
and whose organizational documents further provide, or which entity represented
in the related Mortgage Loan documents, substantially to the effect that it does
not have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Mortgaged Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan Documents, that it has its own books and records and
accounts separate and apart from any other person, that it holds itself out as a
legal entity (separate and apart from any other person), that it will not
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
except on an arm's-length basis.
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
Ex. C-14
such personal property have been filed or recorded (or have been sent for filing
or recording) wherever necessary to perfect under applicable law such security
interests (to the extent a security interest in such personal property can be
perfected by the filing of a Uniform Commercial Code financing statement under
applicable law). The related assignment of such security interest (but for
insertion of the name of the assignee and any related information which is not
yet available to the Mortgage Loan Seller) executed and delivered in favor of
the Trustee constitutes a legal, valid and binding assignment thereof from the
relevant assignor to the Trustee.
37. Prepayment Premiums. Prepayment Premiums payable with respect
to each Mortgage Loan, if any, constitute "customary prepayment penalties"
within meaning of Treasury Regulations Section 1.860G-1(b)(2).
38. [RESERVED]
39. [RESERVED]
40. Recourse. The related Mortgage Loan Documents contain
provisions providing for recourse against the related Borrower, a principal of
such Borrower or an entity controlled by a principal of such Borrower, or a
natural person, for damages sustained in connection with the Borrower's fraud,
material misrepresentation or misappropriation or misapplication of rents,
insurance proceeds or condemnation proceeds. The related Mortgage Loan Documents
contain provisions pursuant to which the related Borrower, a principal of such
Borrower or an entity controlled by a principal of such Borrower, or a natural
person, has agreed to indemnify the mortgagee for damages resulting from
violations of any applicable environmental covenants.
41. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that has not been assigned to the Purchaser.
42. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
43. Escrows. All escrow deposits (including capital improvements,
environmental remediation reserves and other reserve deposits, if any) relating
to any Mortgage Loan that were required to be delivered to the lender under the
terms of the related Mortgage Loan Documents, have been received and, to the
extent of any remaining balances of such escrow deposits, are in the possession
or under the control of Mortgage Loan Seller or its agents (which shall include
the applicable Master Servicer). All such escrow deposits which are required for
the administration and servicing of such Mortgage Loan are conveyed hereunder to
the Purchaser. Any and all material requirements under each Mortgage Loan as to
completion of any material improvements and as to disbursement of any funds
escrowed for such purpose, which requirements were 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.
Ex. C-15
44. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage Loan Documents require the related Borrower, in some cases at
the request of the lender, to provide to the holder of such Mortgage Loan
operating statements and rent rolls not less frequently than quarterly and
annually and financial statements of the Borrower not less frequently than
annually (except if the Mortgage Loan has an outstanding principal balance of
less than or equal to $4,000,000 as of the Cut-off Date or the related Mortgaged
Property has only one tenant, in either of which cases the Mortgage Loan
Documents require the Borrower, in some cases at the request of the lender, to
provide to the holder of such Mortgage Loan operating statements and (if there
is more than one tenant) rent rolls and/or financial statements of the Borrower
annually), and such other information as may be required therein.
45. Appraisals. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of the Mortgage Loan, which
appraisal is signed by an appraiser, who, to the Mortgage Loan Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Borrower or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; in connection
with the origination of the Mortgage Loan, each appraiser has represented in
such appraisal or in a supplemental letter that the appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation.
46. No Capital Contributions. The Mortgage Loan Seller has no
obligation to make any capital contributions to the related Borrower under the
Mortgage Loan.
47. Grace Periods. The related Mortgage or Mortgage Note provides
a grace period for Monthly Payments no longer than ten (10) days from the
applicable Due Date.
48. Access Routes. Based solely on surveys, title insurance
reports, the Title Policy, the engineering report, the appraisal and/or other
relevant documents included in the Mortgage File, at the time of origination of
the Mortgage Loan, the Mortgaged Property had access to a public road.
49. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, in
which case the Mortgage Loan requires the Borrower to escrow an amount
sufficient to pay taxes for the existing tax parcel of which the Mortgaged
Property is a part.
50. Loan Servicing. The servicing practices used with respect to
each Mortgage Loan have been in all material respects legal, proper, and
prudent.
51. Terrorism Insurance. With respect to each Mortgage Loan that
has a Stated Principal Balance as of the Cut-off Date that is greater than or
equal to $20,000,000, the related all risk insurance policy and business
interruption policy do not specifically exclude acts of terrorism from coverage.
With respect to each other Mortgage Loan, the related all risk insurance policy
and business interruption policy did not as of the date of origination of the
Ex. C-16
Mortgage Loan, and, to the Mortgage Loan Seller's knowledge, does not as of the
date hereof, specifically exclude acts of terrorism from coverage. With respect
to each of the Mortgage Loans, the related Mortgage Loan Documents do not
expressly waive or prohibit the mortgagee from requiring coverage for acts of
terrorism or damages related thereto, except to the extent that any right to
require such coverage may be limited by commercially reasonable availability, or
as otherwise indicated on Schedule C to this Agreement.
Ex. C-17
SCHEDULE C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Note: The Mortgage Loans known as Severna Park Portfolio, Baltimore
Commons Portfolio and Gambrills Business Center and Brightview II (Loan Nos. 75,
100 and 161a and 161b), have an Indemnity Deed of Trust structure. The related
borrower under each such Mortgage Loan executed and delivered the related note
to the lender and is obligated to make payments thereunder. The related property
owner for each such Mortgage Loan executed an Indemnity Deed of Trust and
Security Agreement in favor of the lender, guaranteeing all amounts payable by
the borrower under the related note. With respect to certain of the
representations and warranties, with respect to these Mortgage Loans, statements
regarding the borrower relate to the property owner of the related Mortgaged
Property.
EXCEPTIONS TO REPRESENTATION 2 (OWNERSHIP OF MORTGAGE LOANS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 10 (32 Sixth Avenue) The Mortgage Loan is subject to the terms and
conditions of an intercreditor agreement between
the initial holder of the A-1 note and the Mortgage
Loan Seller, the initial holder of the A-2 note.
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Loan No. 25 (Fairlane Xxxxx) The Mortgage Loan is subject to the terms and
conditions of an intercreditor agreement between
the Mortgage Loan Seller, the initial holder of the
A note, and the initial holder of the B Note.
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EXCEPTIONS TO REPRESENTATION 4 (LIEN; VALID ASSIGNMENT)
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MORTGAGE LOAN EXCEPTION
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Loan No. 10 (32 Sixth Avenue) The Mortgaged Property securing the Mortgage Loan
also secures one pari passu A note, which is not an
asset of the trust.
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Loan No. 25 (Fairlane Xxxxx) The Mortgaged Property securing the Mortgage Loan
also secures one subordinate B note, which is not
an asset of the trust.
The Mortgaged Property is also subject to a right
of first offer/right of first refusal in favor of
the prior owner. The right of first offer/right of
first refusal does not apply to (a) a mortgage
transaction, (b) a foreclosure sale or deed-in-
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Sch. C-1
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lieu of foreclosure, or (c) the initial sale of the
Mortgaged Property by a mortgagee after it takes
title to the property. The right of first
offer/right for first refusal will expire April 1,
2008.
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EXCEPTIONS TO REPRESENTATION 14 (INSURANCE)
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MORTGAGE LOAN EXCEPTION
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Loan No. 42 (Town Center Colleyville) The tenant at a ground leased pad owns the
improvements and provides self-insurance for the
required insurance coverage with respect to such
improvements.
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Loan No. 183 (Blackstone) The flood insurance obtained for the Mortgaged
Property does not include an endorsement for law
and ordinance coverage. However, until such
endorsement is obtained, the borrower and the
related recourse carveout guarantor are liable for
any losses resulting from the absence of such
endorsement.
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EXCEPTIONS TO REPRESENTATION 23 (OTHER MORTGAGE LIENS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 10 (32 Sixth Avenue) The Mortgaged Property securing the Mortgage Loan
also secures one pari passu A note, which is not an
asset of the trust.
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Loan No. 25 (Fairlane Xxxxx) The Mortgaged Property securing the Mortgage Loan
also secures one subordinate B note, which is not
an asset of the trust.
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EXCEPTIONS TO REPRESENTATION 27 (CROSS-COLLATERALIZATION)
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MORTGAGE LOAN EXCEPTION
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Loan No. 10 (32 Sixth Avenue) The Mortgaged Property securing the Mortgage Loan
also secures one pari passu A note, which is not an
asset of the trust.
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Loan No. 25 (Fairlane Xxxxx) The Mortgaged Property securing the Mortgage Loan
also secures one subordinate B note, which is not
an asset of the trust.
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Sch. C-2
EXCEPTIONS TO REPRESENTATION 33 (DUE-ON-SALE)
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MORTGAGE LOAN EXCEPTION
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Loan Nos. 47, 000 (Xxxxxxxxx Xxxxx, Pyramid The loan documents also permit, without lender
Plaza) consent, with respect to Mortgage Loans made to
tenant-in-common borrowers, transfers among and to
additional tenant-in-common borrowers.
Loan Nos. 10, 37, 49, 65, 66, 82, 128, 157 The loan documents permit the equity owners of the
(32 Sixth Avenue, TJ Maxx Plaza, Rock borrower to incur mezzanine debt subject to
Shadows RV Park, Hampton Inn and Suites - satisfaction of various conditions specified in
Natomas, Holiday Inn Express - Natomas, such documents, generally including the
Richmond Apartment Portfolio, Maple Tree satisfaction of a DSCR and/or LTV tests and
Inn, Triad East Office Building) delivery of a "no downgrade" confirmation from the
applicable rating agencies.
Loan Xx. 00 (Xxxxxxxxx Xxxxx) The loan documents permit the incurrence of up to
$300,000 in unsecured debt by the borrower in favor
of a specified lender, secured by a pledge from its
equity owners of their equity interests in the
borrower, subject to execution of an acceptable
subordination agreement in favor of the lender.
Loan Xx. 00 (Xxxxxxxxx Xxxxxxxx Xxxxxx) The partners or members of the borrower are
permitted to transfer their interest to a third
party so long as (i) Xxxxxxx Xxxxx, Xxxxxx Xxxxx
and/or another person reasonably acceptable to the
lender maintains a controlling interest in such
borrower or any general partner of such borrower
and (ii) the lender has received "no downgrade"
confirmation of the ratings assigned to the
Certificates from each applicable Rating Agency.
Loan Nos. 69, 138 (Maple Brook Apartments The loan documents permit the equity owners of a
and Aspenwood Apartments) future owner of the Mortgaged Property, who acquire
the Mortgaged Property in an arms-length
transaction from the original borrower and are not
affiliated with the original borrower, to incur
mezzanine debt subject to satisfaction of various
conditions specified in such documents, including
the satisfaction of DSCR and LTV tests.
Sch. C-3
EXCEPTIONS TO REPRESENTATION 34 (SINGLE PURPOSE ENTITY)
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MORTGAGE LOAN EXCEPTION
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Loan No. 75 (Severna Park Portfolio) The Mortgaged Property is owned by the grantor
under an Indemnity Deed of Trust structure. The
grantor, GWS Assets, LLC, is not a Single Purpose
Entity.
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EXCEPTIONS TO REPRESENTATION 35 (WHOLE LOAN)
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MORTGAGE LOAN EXCEPTION
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Loan No. 10 (32 Sixth Avenue) The Mortgage Loan is subject to the terms and
conditions of an intercreditor agreement between
the initial holder of the A-1 note, and the
Mortgage Loan Seller, the initial holder of the A-2
note.
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Loan No. 25 (Fairlane Xxxxx) The Mortgage Loan is subject to the terms and
conditions of an intercreditor agreement between
the Mortgage Loan Seller, the initial holder of the
A note, and the initial holder of the B note.
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EXCEPTIONS TO REPRESENTATION 40 (RECOURSE)
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MORTGAGE LOAN EXCEPTION
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Loan Nos. 47, 000 (Xxxxxxxxx Xxxxx, Pyramid As a result of the tenant-in-common structure, each
Plaza) borrower under the related Mortgage Loan and the
related recourse carveout guarantor is or will be
liable under its recourse carveout guaranty only to
the extent that the event that caused the liability
under the guaranty was caused by such borrower.
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EXCEPTIONS TO REPRESENTATION 51 (TERRORISM INSURANCE)
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MORTGAGE LOAN EXCEPTION
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Loan No. 10 (32 Sixth Avenue) The borrower is required to maintain terrorism
insurance but in no event is required to spend for
any 12-month period in excess of the lesser of (i)
$250,000.00, as such amount may be increased
annually (as of September 1 of each calendar year
beginning September 1, 2008)
Sch. C-4
during the term of the Mortgage Loan by a
percentage equal to the increase in the Consumer
Price Index from the previous year, as determined
by the lender, or (ii) the amount required to
purchase terrorism coverage for the Mortgaged
Property in an amount equal to $360,000,000.00.
Loan No. 14 (Xxxxxx Portfolio) If the Terrorism Risk Insurance Act of 2002, Public
Law 107-297, as amended ("TRIA"), is no longer in
effect, the borrower is required to purchase only
as much terrorism insurance as may be obtained for
an annual premium equal to two times the aggregate
premiums for all insurance in effect at origination
(and not just the portion of premiums attributable
to the terrorism insurance).
Loan Xx. 00 (Xxxxxxx Xxx - Xxxxxxx Xxxxxxxx) If TRIA is no longer in effect, the borrower is
required to purchase terrorism insurance in an
amount equal to the lesser of (i) the amount the
required by the lender and (ii) the amount which is
available for an annual premium equal to two times
the annual premium for terrorism insurance in
effect at origination.
Loan No. 25 (Fairlane Xxxxx) If TRIA is no longer in effect, the borrower is
required to purchase only so much terrorism
insurance as may be obtained for an annual premium
equal to two times of the annual premium of the
"all-risk" insurance policy in effect at
origination.
Sch. C-5
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed certificate attached at Tab 41.
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 Prudential Mortgage
Capital Funding, LLC ("PMCF") of, and the consummation of the various
transactions contemplated by, that certain Mortgage Loan Purchase and Sale
Agreement dated as of September 12, 2007 (the "Mortgage Loan Purchase
Agreement") among PMCF 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 PMCF 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) PMCF
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 PMCF. Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Mortgage Loan Purchase Agreement.
Certified this ___day of September, 2007.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By: _____________________________________
Name:
Title:
Ex. D-2-1
EXHIBIT D-3A
FORM OF OPINION PURSUANT TO SECTION 7(VI)
Executed opinion attached at Tab 91.
Ex. D-3A-1
EXHIBIT D-3B
FORM OF OPINION PURSUANT TO SECTION 7(VII)
Executed opinion attached at Tab 90.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(VIII)
Executed opinion attached at Tab 88 and Tab 89.
Ex. D-3C-1
