EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"),
is dated and effective as of March 8, 2006, 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 II Inc. ("BSCMSII"), 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 BSCMSII, without recourse, representation or warranty, other than as
set forth herein, and BSCMSII 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.
BSCMSII intends to create a trust (the "Trust"), the primary assets
of which will be a segregated pool of multifamily and commercial mortgage loans
that includes the Mortgage Loans and certain other commercial and multifamily
mortgage loans (collectively, the "Trust Mortgage Loans"). Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Fitch,
Inc. and Standard & Poor's Ratings Services, a division of The McGraw Hill
Companies, Inc. (together, the "Rating Agencies"). Certain classes of the
Certificates (the "Registered Certificates") will be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Trust will be
created and the Certificates will be issued pursuant to a pooling and servicing
agreement to be dated as of March 1, 2006 (the "Pooling and Servicing
Agreement"), among BSCMSII, 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"), ARCap Servicing, Inc., as special servicer
(the "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 BSCMSII will transfer the Mortgage Loans to the
Trust contemporaneously with its purchase of the Mortgage Loans hereunder.
BSCMSII 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 BSCMSII and the Underwriters; and BSCMSII 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 BSCMSII and
the Initial Purchasers. The Registered Certificates are more fully described in
the prospectus dated December 1, 2005 (the "Base Prospectus"), and the
supplement to the Base Prospectus dated March 8, 2006 (the "Prospectus
Supplement"; and, together with the Base Prospectus, the "Prospectus"), as each
may be amended or supplemented at any time hereafter. The Non-Registered
Certificates are more fully described in the private placement memorandum dated
the date hereof (the "Memorandum"), as it may be amended or supplemented at any
time hereafter.
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.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller agrees to
sell, assign, transfer, set over and otherwise convey to the Purchaser, without
recourse, representation or warranty, other than as set forth herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject to the terms
and conditions set forth herein, the Mortgage Loans. The purchase and sale of
the Mortgage Loans shall take place on March 21, 2006 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date"). As of
the Cut-off Date, the Mortgage Loans will have an aggregate principal balance,
after application of all payments of principal due on the Mortgage Loans on or
before such date, whether or not received, of $325,759,045, subject to a
variance of plus or minus 5%. The purchase price for the Mortgage Loans shall be
$324,513,723.98, which purchase price excludes accrued interest and applicable
deal expenses. The Purchaser shall pay such purchase price, plus interest
accrued on the Mortgage Loans from the Cut-off Date to the Closing Date and any
applicable deal expenses, to the Mortgage Loan Seller on the Closing Date by
wire transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the purchase price referred to in Section 1 hereof and the other conditions to
the Mortgage Loan Seller's obligations set forth herein, the Mortgage Loan
Seller does hereby sell, assign, transfer, set over and otherwise convey to the
Purchaser, without recourse, representation or warranty, other than as set forth
herein, all of the right, title and interest of the Mortgage Loan Seller in, to
and under 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
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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 BSCMSII to the Trustee of its interests
in the Mortgage Loans as contemplated by Section 15 hereof shall be deemed to be
an assignment of any security interest created hereunder; (iv) the possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes with respect
to the Mortgage Loans subject hereto from time to time and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" or possession by a
purchaser or person designated by such secured party for the purpose of
perfecting such security interest under applicable law; and (v) notifications
to, and acknowledgments, receipts or confirmations from, Persons holding such
property, shall be deemed to be notifications to, or acknowledgments, receipts
or confirmations from, securities intermediaries, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. The Mortgage Loan Seller and the Purchaser shall,
to the extent consistent with this Agreement, take such actions as may be
reasonably necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be a
perfected security interest of first priority under applicable law
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and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall
deliver to and deposit with, or cause to be delivered to and deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing Date, the
Mortgage Note for each Mortgage Loan so assigned, endorsed to the Trustee as
specified in clause (i) of the definition of "Mortgage File", and, on or before
the date that is 45 days following the Closing Date, the remainder of the
Mortgage File for each Mortgage Loan and any Additional Collateral (other than
original Letters of Credit and Reserve Funds, which shall be transferred to the
Trustee or to the applicable Master Servicer) for each Mortgage Loan.
Notwithstanding the preceding sentence, if the Mortgage Loan Seller cannot so
deliver, or cause to be delivered, as to any Mortgage Loan (exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the
original or a copy of any of the documents and/or instruments referred to in
clauses (ii), (iii), (vii) and (ix)(A) of the definition of "Mortgage File",
with evidence of recording or filing (if applicable, and as the case may be)
thereon, solely because of a delay caused by the public recording or filing
office where such document or instrument has been delivered for recordation or
filing, as the case may be, then (subject to the obligation of the Mortgage Loan
Seller to nonetheless (1) from time to time make or cause to be made reasonably
diligent efforts to obtain such document or instrument (with such evidence) if
it is not returned within a reasonable period after the date when it was
transmitted for recording and (2) deliver such document or instrument to the
Trustee or a Custodian appointed thereby (if such document or instrument is not
otherwise returned to the Trustee or such Custodian) promptly upon the Mortgage
Loan Seller's receipt thereof), so long as a copy of such document or
instrument, certified by the Mortgage Loan Seller or title agent as being a copy
of the document deposited for recording or filing and (in the case of such
clause (ii)) accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a statement from the title agent to the effect that such original Mortgage
has been sent to the appropriate public recording official for recordation, has
been delivered to the Trustee on or before the date that is 45 days following
the Closing Date, the delivery requirements of this subsection shall be deemed
to have been satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, and if the Mortgage
Loan Seller cannot or does not so deliver, or cause to be delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the definition of
"Mortgage File", because such document or instrument has been delivered for
recording or filing, as the case may be, then (subject to the obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or cause to be
made reasonably diligent efforts to obtain such document or instrument (with
such evidence) if it is not returned within a reasonable period after the date
when it was transmitted for recording and (2) deliver such document or
instrument to the Trustee or a 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
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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.
(e) In connection with the Mortgage Loan Seller's assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its expense, shall
deliver to and deposit with, or cause to be delivered to and deposited with, the
applicable Master Servicer, on or before the date that is 45 days after the
Closing Date, in the case of the items in clause (i) below, and 20 days after
the Closing Date, in the case of the items in clause (ii) below, the following
items (except to the extent that any of the following items are to be retained
by a Primary Servicer or Sub-Servicer that will continue to act on behalf of the
applicable Master Servicer as contemplated by the Pooling and Servicing
Agreement and a Primary Servicing Agreement or Sub-Servicing Agreement and
except to the extent that any of the following items relate to any Mortgage Loan
that constitutes a Non-Trust-Serviced Pooled Mortgage Loan): (i) originals or
copies of all financial statements, appraisals, environmental/engineering
reports, transaction screens, seismic assessment reports, leases, rent rolls,
insurance policies and certificates, major space leases, legal opinions and
tenant estoppels and any other relevant documents relating to the origination
and servicing of any Mortgage Loan that are reasonably necessary for the ongoing
administration
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and/or servicing of the applicable Mortgage Loan in the possession or under the
control of the Mortgage Loan Seller that relate to the Mortgage Loans
transferred by it to the Purchaser and, to the extent that any original
documents are not required to be a part of a Mortgage File for any such Mortgage
Loan, originals or copies of all documents, certificates and opinions in the
possession or under the control of the Mortgage Loan Seller that were delivered
by or on behalf of the related Borrowers in connection with the origination of
such Mortgage Loans (provided that the Mortgage Loan Seller shall not be
required to deliver any attorney-client privileged communication, draft
documents or any documents or materials prepared by it or its Affiliates for
internal uses, including without limitation, credit committee briefs or
memoranda and other internal approval documents); and (ii) all unapplied Reserve
Funds and Escrow Payments in the possession or under the control of the Mortgage
Loan Seller that relate to the Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Mortgage Loan Seller shall report its
transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale
of the Mortgage Loans to the Purchaser in exchange for the consideration
specified in Section 1 hereof. In connection with the foregoing, the Mortgage
Loan Seller shall cause all of its records to reflect such transfer as a sale
(as opposed to a secured loan) and to reflect that the Mortgage Loans are no
longer property of the Mortgage Loan Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time
to time, shall conform to the requirements set forth in the Pooling and
Servicing Agreement. The Mortgage Loan Seller shall, within 15 days of its
discovery or receipt of notice of any error on the Mortgage Loan Schedule, amend
such Mortgage Loan Schedule and deliver to the Purchaser or the Trustee, as the
case may be, an amended Mortgage Loan Schedule; provided that this sentence
shall not be construed to relieve the Mortgage Loan Seller of any liability for
any related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with any examination
of the Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted or has failed
to conduct any partial or complete examination of any of the Mortgage Files for,
and/or any of such other documents and records relating to, the Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy available in equity
or at law for a breach of the Mortgage Loan Seller's representations and
warranties made pursuant to Section 4, except as expressly set forth in Section
5.
SECTION 4. Representations, Warranties and Covenants of the Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing
Date (and, in connection with any replacement of a Defective Mortgage Loan (as
defined in Section 4(d) hereof) with one or more Replacement Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a) hereof, as of
the related date of substitution), to and for the benefit of the Purchaser, each
of the representations and warranties set forth in Exhibit B-1. The Purchaser
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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 BSCMSII 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
the information set forth in the Prospectus Supplement complied with the
disclosure requirements of Regulation AB that arise from its role as
"originator" (or from 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.
(e) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Mortgage Loan Seller hereby agrees to
provide the Purchaser (or with respect to any Serviced Non-Pooled Pari Passu
Companion Loan that is deposited into an Other Securitization, the depositor in
such Other Securitization) and the Certificate Administrator with any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure opposite which
"Pooled Mortgage Loan Seller" is set forth on Schedule IX and Schedule X to the
Pooling and Servicing Agreement within the time periods and in accordance with
the provisions set forth in the Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be
deemed to make to and for the benefit of the Purchaser, as of the date of
substitution, with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan") that is substituted for a Defective Mortgage Loan, by the
Mortgage Loan Seller pursuant to Section 5(a) of this Agreement, each of the
representations and warranties set forth in Exhibit C to this Agreement. From
and after the date of substitution, each Replacement Mortgage Loan, if any,
shall be deemed to constitute a "Mortgage Loan" hereunder for all purposes. A
"Defective Mortgage Loan" is any Mortgage Loan as to which there is an
unremedied Material Breach or Material Document Defect.
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser, notwithstanding any restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the Mortgage Loan
Seller of notice, of any Material Breach or Material Document Defect with
respect to any Mortgage Loan (or, if such Material Breach or Material Document
Defect, as the case may be, related to whether such Mortgage
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Loan is, or as of the Closing Date (or, in the case of a Replacement Mortgage
Loan, as of the related date of substitution), was a Qualified Mortgage, and
provided that the Mortgage Loan Seller discovered or received prompt written
notice thereof, within 90 days after any earlier discovery by the Mortgage Loan
Seller or any party to the Pooling and Servicing Agreement of such Material
Breach or Material Document Defect, as the case may be) (such 90-day period, in
any case, the "Initial Resolution Period"), correct or cure such Material
Document Defect or Material Breach, as the case may be, in all material
respects, or repurchase the affected Mortgage Loan at the applicable Purchase
Price; provided that if the Mortgage Loan Seller certifies to the Trustee in
writing (i) that such Material Document Defect or Material Breach, as the case
may be, does not relate to whether the affected Mortgage Loan is or, as of the
Closing Date (or, in the case of a Replacement Mortgage Loan, as of the related
date of substitution), was a Qualified Mortgage, (ii) that such Material
Document Defect or Material Breach, as the case may be, is capable of being
cured but not within the applicable Initial Resolution Period, (iii) that such
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Material Document Defect or Material Breach, as the case may be, during the
applicable Initial Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates that such Material Document Defect or Material Breach, as the case
may be, will be cured within an additional 90-day period (such additional 90-day
period, the "Resolution Extension Period"), then the Mortgage Loan Seller shall
have an additional period equal to any such applicable Resolution Extension
Period to complete such correction or cure (or, upon failure to complete such
correction or cure, to repurchase the affected Mortgage Loan); and provided,
further, that, in lieu of repurchasing the affected Mortgage Loan as
contemplated above (but, in any event, no later than such repurchase would have
to have been completed), such Mortgage Loan Seller shall be permitted, during
the three-month period following the Startup Day for the REMIC Pool that holds
the affected Mortgage Loan (or during the two-year period following such Startup
Day if the affected Mortgage Loan is a "defective obligation" within the meaning
of Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), to replace the affected Mortgage Loan with one or more Qualifying
Substitute Mortgage Loans and to pay a cash amount equal to the applicable
Substitution Shortfall Amount. The parties hereto agree that delivery by the
Trustee (or a Custodian on its behalf) of a certification or schedule of
exceptions to the Mortgage Loan Seller pursuant to the Pooling and Servicing
Agreement shall not in and of itself constitute delivery of notice of any
Material Document Defect or knowledge of the Mortgage Loan Seller of any
Material Document Defect therein. If any Mortgage Loan is to be repurchased or
replaced as contemplated by this subsection, the Purchaser or its designee shall
be entitled to designate the account to which funds in the amount of the
applicable Purchase Price or Substitution Shortfall Amount (as the case may be)
are to be wired. Any such repurchase or replacement of a Mortgage Loan shall be
on a whole loan, servicing released basis. Notwithstanding this subsection, the
absence from the Mortgage File, (i) on the Closing Date of the Mortgage Note (or
a lost note affidavit and indemnity with a copy of the Mortgage Note) and (ii)
by the first anniversary of the Closing Date of originals or copies of the
following documents (without the presence of any factor that reasonably
mitigates such absence, non-conformity or irregularity) or of any Specially
Designated Mortgage Loan Document shall be conclusively 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
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"Mortgage File"; (b) the title insurance policy as described in clause (viii) of
the definition of "Mortgage File" (or, if the policy has not yet been issued, an
original or copy of a written commitment "marked-up" at the closing of such
Mortgage Loan, interim binder or the pro forma title insurance policy, in each
case evidencing a binding commitment to issue such policy); or (c) the
assignment of Mortgage (and any separate Assignment of Leases) as described by
clause (iv) of the definition of "Mortgage File". For purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the definition of
such term set forth in the Pooling and Servicing Agreement as in full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to the other Mortgage Loan(s) that are a part of such
Cross-Collateralized Group (the "Other Crossed Loans") (without regard to this
paragraph), then the applicable Document Defect or Breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of the above
provisions, and the Mortgage Loan Seller shall be obligated to repurchase or
replace each such Other Crossed Loan in accordance with the provisions above
unless, in the case of such Breach or Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers
or causes to be delivered to the Trustee an Opinion of Counsel to the
effect that its repurchase of only those Mortgage Loans as to which a
Material Breach has actually occurred without regard to the provisions of
this paragraph (the "Affected Loan(s)") and the operation of the remaining
provisions of this Section 5(a) will not result in an Adverse REMIC Event
with respect to any REMIC Pool, or an Adverse Grantor Event with respect
to either Grantor Trust Pool, under the Pooling and Servicing Agreement;
and
(B) both of the following conditions would be satisfied
if the Mortgage Loan Seller were to repurchase or replace only the
Affected Loans and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such
Other Crossed Loan (excluding the Affected Loan(s)) for the four
calendar quarters immediately preceding the repurchase or
replacement is not less than the least of (A) 0.10x below the debt
service coverage ratio for the Cross-Collateralized Group (including
the Affected Loan(s)) set forth in Appendix B to the Prospectus
Supplement, (B) the debt service coverage ratio for the
Cross-Collateralized 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
9
number (taken to one decimal place), for the Cross-Collateralized
Group (including the Affected Loan(s)) set forth in Appendix B to
the Prospectus Supplement plus 10%, (B) the loan-to-value ratio for
the Cross-Collateralized Group (including the Affected Loan(s)) at
the time of repurchase or replacement, and (C) 75%.
The determination of the applicable Master Servicer as to whether the conditions
set forth above have been satisfied shall be conclusive and binding in the
absence of manifest error. The applicable Master Servicer will be entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in which case the
Mortgage Loan Seller shall) cause to be delivered, to the applicable Master
Servicer an Appraisal of any or all of the related Mortgaged Properties for
purposes of determining whether the condition set forth in clause (ii) above has
been satisfied, in each case at the expense of the Mortgage Loan Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan Seller and the
Controlling Class Representative (such approval not to be unreasonably withheld
in each case).
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described in the
preceding paragraph are satisfied, such that the Trust Fund will continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the Purchaser agree
to forbear from enforcing any remedies against the other's Primary Collateral
but each is permitted to exercise remedies against the Primary Collateral
securing its respective Mortgage Loans, including with respect to the Trustee,
the Primary Collateral securing the Affected Loan(s) still held by the Trustee,
so long as such exercise does not impair the ability of the Mortgage Loan Seller
to exercise its remedies against its Primary Collateral. If the exercise of
remedies by one such party would impair the ability of the other such party to
exercise its remedies with respect to the Primary Collateral securing the
Affected Loan or the Other Crossed Loans, as the case may be, held by the other
such party, then both parties shall forbear from exercising such remedies unless
and until the Mortgage Loan Documents evidencing and securing the relevant
Mortgage Loans can be modified in a manner that complies with this Agreement to
remove the threat of impairment as a result of the exercise of remedies. Any
reserve or other cash collateral or letters of credit securing any of the
Cross-Collateralized Loans shall be allocated between the Mortgage Loans in
accordance with the Mortgage Loan Documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. All other terms of the
Mortgage Loans shall remain in full force and effect, without any modification
thereof. The Borrowers set forth on Schedule V to the Pooling and Servicing
Agreement are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Borrower's consent.
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
10
direction by the applicable Master Servicer, the Mortgage Loan Seller shall
deliver to the Trustee the related Mortgage File and a certification to the
effect that such Replacement Mortgage Loan satisfies or such Replacement
Mortgage Loans satisfy, as the case may be, all of the requirements of the
definition of "Qualifying Substitute Mortgage Loan". No mortgage loan may be
substituted for a Defective Mortgage Loan as contemplated by this Section 5 if
the Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in
which case, absent a cure of the relevant Material Breach or Material Document
Defect, the affected Mortgage Loan will be required to be repurchased as
contemplated hereby. Monthly Payments due with respect to each Replacement
Mortgage Loan (if any) after the related date of substitution, and Monthly
Payments due with respect to each corresponding Deleted Mortgage Loan (if any)
after its respective Cut-off Date and on or prior to the related date of
substitution, shall be part of the Trust Fund. Monthly Payments due with respect
to each Replacement Mortgage Loan (if any) on or prior to the related date of
substitution, and Monthly Payments due with respect to each corresponding
Deleted Mortgage Loan (if any) after the related date of substitution, shall not
be part of the Trust Fund and are to be remitted by the applicable Master
Servicer to the Mortgage Loan Seller promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced by the
Mortgage Loan Seller as contemplated by this Section 5, upon direction by the
applicable Master Servicer, the Mortgage Loan Seller shall amend the Mortgage
Loan Schedule to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
parties to the Pooling and Servicing Agreement. Upon any substitution of one or
more Replacement Mortgage Loans for a Deleted Mortgage Loan, such Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject to the terms
of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by the related Mortgage Loan Seller as contemplated by
this Section 5 has been deposited in the account designated therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and further, if
applicable, upon receipt by the Purchaser (or the Trustee or a Custodian
appointed thereby) of the Mortgage File for each Replacement Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together with any
certifications and/or opinions required pursuant to this Section 5 to be
delivered by the Mortgage Loan Seller, the Purchaser (or the Trustee) shall (i)
release or cause the release of the Mortgage File and any Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the Deleted Mortgage
Loan to the Mortgage Loan Seller or its designee and (ii) execute and deliver
such instruments of release, transfer and/or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
Mortgage Loan Seller or its designee the ownership of 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
11
the Purchaser), as the case may be, with respect to the Deleted Mortgage Loan,
in each case at the expense of the Mortgage Loan Seller.
(d) It is understood and agreed that the obligations of the
Mortgage Loan Seller set forth in this Section 5 to cure a Material Breach or a
Material Document Defect, or to repurchase or replace the related Defective
Mortgage Loan(s), constitute the sole remedies available to the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage Loan.
Notwithstanding the foregoing, to the extent (but only to the
extent) that (A) the Mortgage Loan Seller represents in the representation and
warranty set forth in the final sentence of paragraph 23 or the representation
and warranty set forth in the final sentence of paragraph 29 of Exhibit C
attached hereto that the Borrower under a Mortgage Loan is required to pay, or
that the lender is entitled to charge the Borrower for, a cost or expense
described in such sentence, (B) such representation and warranty is untrue with
respect to such cost or expense, (C) the Purchaser actually incurs such cost or
such expense, (D) the Purchaser (or a Person acting on behalf of the Purchaser)
exercises efforts consistent with the Servicing Standard and the related
Mortgage Loan Documents to collect such cost or expense from the Borrower and
(E) the Borrower does not pay such cost or expense at or before the conclusion
of the efforts described in the preceding clause (D), then the Mortgage Loan
Seller hereby covenants and agrees (it being the intention of the parties that
all, and not less than all, of the conditions described in the preceding clauses
(A), (B), (C), (D) and (E) shall be precedent to such covenant and agreement) to
pay such cost or expense within 90 days following a direction by the Purchaser
(or a Person acting on behalf of the Purchaser) to do so. Also notwithstanding
the foregoing, the remedy described in the immediately preceding sentence shall
constitute the sole remedy available to the Purchaser, the Certificateholders or
the Trustee on behalf of the Certificateholders with respect to any breach of
any representation described in clause (A) of the immediately preceding
sentence, the Mortgage Loan Seller shall not otherwise have any obligation to
cure such a breach and the Mortgage Loan Seller shall not have any obligation to
repurchase or replace the affected Mortgage Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Austin LLP, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(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
12
Mortgage Loan Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released
to the Purchaser or its designee, all documents, funds and other assets
required to be delivered thereto pursuant to Section 2 of this Agreement;
(iv) The result of any examination of the Mortgage Files for, and
any other documents and records relating to, the Mortgage Loans performed
by or on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied
with in all material respects, and the Mortgage Loan Seller shall have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed by it after the
Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees and
expenses payable by it to the Purchaser or otherwise pursuant to this
Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase
price for the Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Each of the parties agrees to use their commercially reasonable best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Purchaser or its designee shall
have received all of the following Closing Documents, in such forms as are
agreed upon and acceptable to the Purchaser, the Underwriters, the Initial
Purchasers and the Rating Agencies (collectively, the "Interested Parties"), and
upon which the Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the
Mortgage Loan Seller;
(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
13
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 BSCMSII and the Underwriters, which letter shall be substantially in
the form of Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel for the
Mortgage Loan Seller to the Rating Agencies in connection with the
transactions contemplated by this Agreement, including, but not limited
to, with respect to the characterization of the transfer of the Mortgage
Loans hereunder as a true sale, with each such opinion to be addressed to
the other Interested Parties and the Trustee or accompanied by a letter
signed by such counsel stating that the other Interested Parties and the
Trustee may rely on such opinion as if it were addressed to them as of
date thereof;
(x) One or more comfort letters from Deloitte & Touche LLP,
certified public accountants, dated the date of any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum, respectively,
and addressed to, and in form and substance acceptable to, the Interested
Parties (other than the Rating Agencies), stating in effect that, using
the assumptions and methodology used by BSCMSII 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
14
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.
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 BSCMSII and by BSCMSII 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
15
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction; Waiver of Trial
by Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and take such
further actions as any other party hereto may, from time to time, reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of
the Mortgage Loan Seller under this Agreement shall not be assigned by the
Mortgage Loan Seller without the prior written consent of the Purchaser, except
that any person into which the Mortgage Loan Seller may be merged or
consolidated, or any person resulting from any merger, conversion or
consolidation to which the Mortgage Loan Seller is a party, or any person
succeeding to all or substantially all of the business of the Mortgage Loan
Seller, shall be the successor to the Mortgage Loan Seller hereunder. In
connection with its transfer of the Mortgage Loans to the Trust as contemplated
by the recitals hereto, BSCMSII 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.
16
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 COPY
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/ Xxxxxxx Xxxxxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
BEAR XXXXXXX COMMERCIAL
MORTGAGE SECURITIES II INC.
By: /s/ Xxxxxxx X. Xxxxxx Xx.
------------------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Vice President
PMCF MLPA
EXHIBIT A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
Ex. A-1
ID SELLER LOAN NUMBER PROPERTY NAME LOAN GROUP ADDRESS
--- ------------------ ----------------------------------- ---------- -----------------------------------------------------
12 6106129 Xxxxxx Xxxxxxxxx Xxxxxx 0 000 Xxxxxxx Xxxx
13 6106320 Danbury Green 1 113 & 000 Xxxx Xxxxx Xxxx
18 6106209 Xxxxxxx Xxxx 0 00-00 Xxxx Xxxx Xxxxxx
19 6106316 Hawthorn Suites - Xxxxxxxxxx 0 000 Xxxxx Xxx Xxxx Street
21 6106211 MonteLago Apartments 2 00000 Xxxx Xxxxxx Xxxxx
25 6106126 Xxxxxxx Corporate Center IV 1 6750 Via Austi Parkway
27 6106274 De Anza Shopping Center 1 7700 - 0000 Xxxxxxxx Xxxxxx and 6101-6115 Camino Real
33 6106350 Blazer Business Park 1 0000 Xxxxxx Xxxxxxx
35 6106355 Sunset Road Self Storage 1 000 Xxxxxx Xxxx
39 6105780 Metlox Retail 1 000 Xxxxxxxxx Xxxxx Xxxx.
40 6106261 Xxxxxxxx Xxxxxxx 0 00000 Xxxxxxx Xxxx
49 6106430 Xxxx Xxxxxxx Square Shopping Center 1 955 and 000 X. Xxxxxxx Xxxx
50 6106419 Trolley Corners 1 000 Xxxxx 000 Xxxx
52 6106351 Beltline at Quorum 1 4901 Beltline Road
56 6106193 Essex Place 1 0000 Xxx Xxxx Xxxxxxxxx
58 6105292 Troy Xxxxxxx Xxxxxx Xxxxxxxx 0 000 Xxxx Xxxxxx
60 6106282 ezStorage - Columbia 1 9265 Xxxxxx Road
68 6106365 Woodlake Apartments 2 0000 XX Xxxxxxx Xxxxx
71 6106346 Greystone Park Retail & Office 1 5511 Highway 280 East
74 6106233 The Storage Center - Coursey 1 00000 Xxxxxxx Xxxxxxxxx
78 6106248 0000 Xxxxxxxxxxxx Xxxxx 1 2970 Presidential Drive
80 6106281 ezStorage - Arbutus 1 0000 Xxxxxxxxxxxx Xxxx.
81 6106287 Hawthorn Suites - Louisville 1 000 Xxxxxxx Xxxxxxx Xxxxx
83 6106347 American Xxxxxxxxxx Xxx 0 0000 Xxxxxxxx Xxxxxxxxxx Xxx
87 6106286 Draper PAS Park 1 12577 South 265 West
92 6105956 Olde Xxxxxxxx Xxxxx Xxxxxx 0 0000 Xxxxxxxx Xxxx
94 6106301 Xxxxxx Xxxxx Xxxxxxxxxx 0 000 Xxxxxx Xxxxx
102 6106231 Xxxxxxxx Xxxxxxxx Xxxxxx 0 000 X. Xxxxxxxx Xxxx
107 6106330 Xxxxxx Xxxxxxxxxx Xxxxx 0 00 Xxxxx Xxxxxx Xxxxxx
111 6106364 000 Xxxx 00xx Xxxxxx 1 000 Xxxx 00xx Xxxxxx
115 6106271 Xxxxxxx Xxxxx 0 000-000 Xxxxxxx Xxxxx
119 6106290 Memphis Industrial 1 4120 Air Trans Road
127 6106296 FM 1960 & Eldridge Shopping Center 1 12620 FM 1960 & 00000 X. Xxxxxxxx Xxxxxxx
130 6106275 Fullerton Industrial Park 1 501, 521, 000 X. Xxxxx Xxxxxxx Xxxxxxxxx
133 6106268 Xxx Xxxxxxxx Xxxxxxxx 0 0000 Xxxxxxxxx 00xx Xxxxxx
135 6106360 Xxxxxxx-Xxxx Xxxxxxx 0 000 Xxxx Xxxxxx
137 6106348 000 Xxx Xxxx 0 000 Xxx Xxxx Xxxxxxxxx
143 6106298 Xxxx Xxxxx Xxxxxxxxxx 0 0000 Xxxxxxx Xxxxxx
150 6106266 Emerald Building 1 000 X. 00xx Xxxxxx
152 6106142 Xxxxxx Xxxx Xxxxxxxxxx 0 00 Xxxxxxxx Xxxx XX
157 6106397 The Malibu 1 00000 Xxxxxxx Xxxxx Xxxxxxx
X&X MONTHLY DEBT IO MONTHLY DEBT
ID CITY STATE ZIP CODE ORIGINAL BALANCE CUT-OFF DATE BALANCE SERVICE SERVICE
--- --------------- ----- -------- ---------------- -------------------- ---------------- ---------------
12 Xxxxxx XX 00000 25,000,000 24,939,597 139,137
13 Xxxxxxx XX 00000 24,700,000 24,700,000 122,085 NAP
18 Xxxxxxx XX 00000 18,200,000 18,200,000 87,651 105,633
19 Xxxxxxxxxx XX 00000 17,700,000 17,700,000 87,935 112,747
21 Xxxxxxx XX 00000 17,400,000 17,400,000 74,977 94,473
25 Xxx Xxxxx XX 00000 15,600,000 15,600,000 70,384 87,015
27 Xxxxxxxxx XX 00000 15,000,000 15,000,000 84,136
33 Xxxxxx XX 00000 12,125,000 12,125,000 57,677 69,837
35 Xxxxxxxxxx XX 00000 11,250,000 11,224,375 65,153
39 Xxxxxxxxx Xxxxx XX 00000 11,000,000 10,976,106 65,739
00 Xxxxxx Xxxxx XX 00000 10,600,000 10,600,000 49,348 60,252
49 Xxxxxxxx XX 00000 9,335,000 9,335,000 44,642 53,944
50 Xxxx Xxxx Xxxx XX 00000 9,250,000 9,237,049 52,520
52 Xxxxxx XX 00000 8,950,000 8,937,694 51,776
56 Xxxxxxxxxxxx XX 00000 7,950,000 7,950,000 45,689
58 Xxxx XX 00000 7,860,000 7,827,578 46,369
60 Xxxxxxxx XX 00000 7,775,000 7,749,923 48,257
68 Xxxxxxxx XX 00000 6,450,000 6,450,000 30,736 37,191
71 Xxxxxxxxxx XX 00000 6,210,000 6,210,000 36,161
74 Xxxxx Xxxxx XX 00000 5,800,000 5,786,438 33,005
78 Xxxxxxxx XX 00000 5,504,000 5,504,000 25,996 31,563
80 Xxxxxxxxx XX 00000 5,400,000 5,382,583 33,516
81 Xxxxxxxxxx XX 00000 5,300,000 5,283,723 34,051
83 Xxxxxxxx XX 00000 5,200,000 5,200,000 25,395 30,445
87 Xxxxxx XX 00000 4,950,000 4,950,000 23,755 28,667
92 Xxxxxxxxx XX 00000 4,600,000 4,600,000 26,815
94 Xxxxxxxxx XX 00000 4,500,000 4,493,726 25,664
102 Xxxxxxxx XX 00000 4,300,000 4,278,738 25,515
000 Xxxxxx XX 00000 4,000,000 4,000,000 19,365 25,590
111 Xxxxxx XX 00000 3,850,000 3,844,789 22,639
115 Xxxxxxx XX 00000 3,600,000 3,600,000 17,642 21,123
000 Xxxxxxx XX 00000 3,375,000 3,370,542 20,365
000 Xxxxxxx XX 00000 3,000,000 2,994,631 19,183
130 Xxxxxxxxx XX 00000 2,970,000 2,957,842 17,597
133 Xxxxxxxx XX 00000 2,775,000 2,768,972 16,584
135 Xxxxxxx XX 00000 2,757,500 2,757,500 13,630 16,268
137 Xxxxx Xxxxx XX 00000 2,700,000 2,687,331 18,756
000 Xxxxx Xxxxx XX 00000 2,560,000 2,560,000 12,697 15,135
000 Xxxxxxxxx XX 00000 2,288,000 2,284,893 13,410
000 Xxxx XX 00000 2,240,000 2,234,534 12,383
000 Xxxxxx XX 00000 2,060,000 2,056,480 13,806
ID MORTGAGE RATE INTEREST ACCRUAL BASIS ID SELLER LOAN NUMBER PROPERTY NAME ARD LOAN (Y/N)
--- ------------- ---------------------- --- ------------------ ----------------------------------- --------------
12 5.32000% Actual/360 12 6106129 Wilton Corporate Center No
13 5.85000% Actual/360 13 6106320 Danbury Green No
18 5.70000% Actual/360 18 6106209 Xxxxxxx Xxxx Xx
00 5.88000% Actual/360 19 6106316 Hawthorn Suites - Xxxxxxxxxx Xx
00 5.10000% Actual/360 21 6106211 MonteLago Apartments No
25 5.34000% Actual/360 25 6106126 Xxxxxxx Corporate Center IV Yes
27 5.39000% Actual/360 27 6106274 De Anza Shopping Center No
33 5.63000% Actual/360 33 6106350 Blazer Business Park No
35 5.68000% Actual/360 35 6106355 Sunset Road Self Storage No
39 5.97000% Actual/360 39 6105780 Metlox Retail No
40 5.51000% Actual/360 40 6106261 Eastland Village No
49 5.66000% Actual/360 49 6106430 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xx
00 5.50000% Actual/360 50 6106419 Trolley Corners No
52 5.67000% Actual/360 52 6106351 Beltline at Quorum No
56 5.61000% Actual/360 56 6106193 Essex Xxxxx Xx
00 5.85000% Actual/360 58 6105292 Troy Medical Office Building Yes
60 5.61000% Actual/360 60 6106282 ezStorage - Columbia No
68 5.64000% Actual/360 68 6106365 Woodlake Apartments No
71 5.73000% Actual/360 71 6106346 Greystone Park Retail & Office No
74 5.52000% Actual/360 74 6106233 The Storage Center - Coursey No
78 5.59000% Actual/360 78 6106248 0000 Xxxxxxxxxxxx Xxxxx Xx
00 5.61000% Actual/360 80 6106281 ezStorage - Arbutus No
81 5.97000% Actual/360 81 6106287 Hawthorn Suites - Louisville No
83 5.78000% Actual/360 83 6106347 American Xxxxxxxxxx Xxx Xx
00 5.68000% Actual/360 87 6106286 Xxxxxx XXX Xxxx Xx
00 5.74000% Actual/360 92 6105956 Olde Kingston Towne Center No
94 5.54000% Actual/360 94 6106301 Xxxxxx Xxxxx Xxxxxxxxxx Xx
000 5.15000% Actual/360 102 6106231 Danville Shopping Center No
107 5.73000% Actual/360 107 6106330 Dayton Doubletree Hotel No
111 5.82000% Actual/360 111 6106364 000 Xxxx 00xx Xxxxxx Xx
000 5.80000% Actual/360 115 6106271 Xxxxxxx Xxxxx Xx
000 6.06000% Actual/360 119 6106290 Memphis Industrial No
127 5.92000% Actual/360 127 6106296 FM 1960 & Eldridge Shopping Center No
130 5.89000% Actual/360 130 6106275 Xxxxxxxxx Xxxxxxxxxx Xxxx Xx
000 5.97000% Actual/360 133 6106268 Xxx Xxxxxxxx Xxxxxxxx Xx
000 5.85000% Actual/360 135 6106360 Xxxxxxx-Xxxx Village Yes
137 5.62000% Actual/360 137 6106348 000 Xxx Xxxx Xx
000 5.87000% Actual/360 143 6106298 Sand Creek Apartments No
150 5.79000% Actual/360 150 6106266 Emerald Building No
152 5.26000% Actual/360 152 6106142 Xxxxxx Xxxx Xxxxxxxxxx Xx
000 6.42000% Actual/360 157 6106397 The Malibu No
MATURITY ORIGINAL TERM STATED REMAINING ORIGINAL REMAINING
DATE TO MATURITY OR TERM TO MATURITY AMORTIZATION AMORTIZATION
ID OR ARD ARD (MOS.) OR ARD (MOS.) TERM (MOS.) TERM (MOS.) CROSSED WITH OTHER LOANS CROSSED LOAN ID
--- -------- -------------- ---------------- ------------ ------------ ------------------------ ---------------
12 01/05/16 120 118 360 358
13 01/05/16 120 118 0 0
18 01/05/16 120 118 360 360
19 02/05/16 120 119 300 300
21 11/05/15 120 116 360 360
25 10/01/15 120 115 360 360
27 03/05/16 120 120 360 360
33 02/05/16 120 119 360 360
35 01/05/16 120 118 360 358
39 01/05/16 120 118 360 358
40 12/05/10 60 57 360 360
49 03/01/16 120 120 360 360
50 02/01/16 120 119 360 359
52 02/05/16 120 119 360 359
56 03/05/16 120 120 360 360
58 11/05/15 120 116 360 356
60 01/05/16 120 118 300 298
68 02/01/16 120 119 360 360
71 03/05/16 120 120 360 360
74 01/05/16 120 118 360 358
78 12/05/15 120 117 360 360
80 01/05/16 120 118 300 298
81 01/05/16 120 118 300 298
83 02/05/16 120 119 360 360
87 12/05/15 120 117 360 360
92 03/05/16 120 120 360 360
94 02/05/16 120 119 360 359
102 12/05/15 120 117 300 297
107 02/05/16 120 119 288 288
111 02/05/16 120 119 360 359
115 01/05/16 120 118 360 360
119 02/05/16 120 119 360 359
127 02/05/16 120 119 300 299
130 11/05/15 120 116 360 356
133 01/05/16 120 118 360 358
135 03/05/16 120 120 360 360
137 01/05/16 120 118 240 238
143 01/05/16 120 118 360 360
150 02/05/16 120 119 360 359
152 01/05/16 120 118 360 358
157 02/05/16 120 119 300 299
OWNERSHIP
ID PREPAYMENT PROVISIONS (# OF PAYMENTS) INTEREST ID SELLER LOAN NUMBER PROPERTY NAME
--- ------------------------------------- --------- --- ------------------ -----------------------------------
12 LO(27)/Defeasance(89)/Open(4) Fee 12 6106129 Wilton Corporate Center
13 LO(47)/GRTR1% or YM(70)/Open(3) Fee 13 6106320 Danbury Green
18 LO(27)/Defeasance(89)/Open(4) Fee 18 6106209 Mendham Mall
19 LO(26)/GRTR1% or YM(90)/Open(4) Fee 19 6106316 Hawthorn Suites - Alexandria
21 LO(29)/Defeasance(87)/Open(4) Fee 21 6106211 MonteLago Apartments
25 LO(47)/GRTR1% or YM(69)/Open(4) Fee 25 6106126 Xxxxxxx Corporate Center IV
27 LO(25)/Defeasance(91)/Open(4) Fee 27 6106274 De Anza Shopping Center
33 LO(26)/Defeasance(90)/Open(4) Fee 33 6106350 Blazer Business Park
35 LO(27)/Defeasance(89)/Open(4) Fee 35 6106355 Sunset Road Self Storage
39 LO(27)/Defeasance(89)/Open(4) Leasehold 39 6105780 Metlox Retail
40 LO(28)/Defeasance(28)/Open(4) Fee 40 6106261 Xxxxxxxx Xxxxxxx
00 LO(25)/Defeasance(91)/Open(4) Fee 49 6106430 Xxxx Xxxxxxx Square Shopping Center
50 LO(26)/Defeasance(90)/Open(4) Fee 50 6106419 Trolley Corners
52 LO(26)/Defeasance(90)/Open(4) Fee 52 6106351 Beltline at Quorum
56 LO(25)/Defeasance(91)/Open(4) Fee 56 6106193 Essex Place
58 LO(29)/Defeasance(87)/Open(4) Fee 58 6105292 Troy Medical Office Building
60 LO(49)/GRTR1% or YM(67)/Open(4) Fee 60 6106282 ezStorage - Columbia
68 LO(26)/Defeasance(90)/Open(4) Fee 68 6106365 Woodlake Apartments
71 LO(25)/Defeasance(91)/Open(4) Fee 71 6106346 Greystone Park Retail & Office
74 LO(27)/Defeasance(89)/Open(4) Fee 74 6106233 The Storage Center - Coursey
78 LO(28)/Defeasance(85)/Open(7) Fee 78 6106248 0000 Xxxxxxxxxxxx Xxxxx
80 LO(49)/GRTR1% or YM(67)/Open(4) Fee 80 6106281 ezStorage - Arbutus
81 LO(27)/Defeasance(89)/Open(4) Fee 81 6106287 Hawthorn Suites - Louisville
83 LO(26)/Defeasance(90)/Open(4) Fee 83 6106347 American Xxxxxxxxxx Xxx
00 LO(28)/Defeasance(88)/Open(4) Fee 87 6106286 Draper PAS Park
92 LO(25)/Defeasance(91)/Open(4) Leasehold 92 6105956 Olde Kingston Towne Center
94 LO(26)/Defeasance(90)/Open(4) Fee 94 6106301 Sunset Manor Apartments
102 LO(28)/Defeasance(88)/Open(4) Fee 102 6106231 Danville Shopping Center
107 LO(26)/Defeasance(90)/Open(4) Fee 107 6106330 Dayton Doubletree Hotel
111 LO(26)/Defeasance(90)/Open(4) Fee 111 6106364 000 Xxxx 00xx Xxxxxx
115 LO(27)/Defeasance(89)/Open(4) Fee 115 6106271 Xxxxxxx Xxxxx
000 LO(26)/Defeasance(90)/Open(4) Fee 119 6106290 Memphis Industrial
127 LO(26)/Defeasance(90)/Open(4) Fee 127 6106296 FM 1960 & Eldridge Shopping Center
130 LO(47)/GRTR1% or YM(70)/Open(3) Fee 130 6106275 Fullerton Industrial Park
133 LO(27)/Defeasance(89)/Open(4) Fee 133 6106268 The Triangle Building
135 LO(25)/Defeasance(91)/Open(4) Fee 135 6106360 Xxxxxxx-Xxxx Village
137 LO(23)/GRTR1% or YM(93)/Open(4) Fee 137 6106348 000 Xxx Xxxx
143 LO(27)/Defeasance(89)/Open(4) Fee 143 6106298 Sand Creek Apartments
150 LO(26)/Defeasance(90)/Open(4) Fee 150 6106266 Emerald Building
152 LO(27)/Defeasance(89)/Open(4) Fee 152 6106142 Xxxxxx Xxxx Xxxxxxxxxx
000 LO(26)/Defeasance(90)/Open(4) Fee 157 6106397 The Malibu
ADMINISTRATIVE GRACE PERIOD
ID LOAN SELLER FEE RATE DUE DATE (PRIOR TO LATE FEES) LETTER OF CREDIT LETTER OF CREDIT DESCRIPTION
--- ----------- -------------- -------- -------------------- ---------------- ----------------------------
12 PMCF 0.02180% 5th 0
13 PMCF 0.02180% 5th 0
18 PMCF 0.02180% 5th 0
19 PMCF 0.07180% 5th 0
21 PMCF 0.02180% 5th 0
25 PMCF 0.07180% 1st 5
27 PMCF 0.05180% 5th 0
33 PMCF 0.02180% 5th 0
35 PMCF 0.02180% 5th 0
39 PMCF 0.07180% 5th 0
40 PMCF 0.07180% 5th 0
49 PMCF 0.02180% 1st 5
50 PMCF 0.07180% 1st 5
52 PMCF 0.02180% 5th 0
56 PMCF 0.07180% 5th 0
58 PMCF 0.07180% 5th 0 1,047,000 (LOC) Upfront TI/LC (LOC)
60 PMCF 0.02180% 5th 0
68 PMCF 0.02180% 1st 5
71 PMCF 0.02180% 5th 0
74 PMCF 0.02180% 5th 0
78 PMCF 0.07180% 5th 0
80 PMCF 0.02180% 5th 0
81 PMCF 0.02180% 5th 0
83 PMCF 0.07180% 5th 0
87 PMCF 0.02180% 5th 0
92 PMCF 0.02180% 5th 0
94 PMCF 0.02180% 5th 15
102 PMCF 0.02180% 5th 0
107 PMCF 0.07180% 5th 0
111 PMCF 0.07180% 5th 0
115 PMCF 0.02180% 5th 0
119 PMCF 0.02180% 5th 0
127 PMCF 0.02180% 5th 0
130 PMCF 0.07180% 5th 0
133 PMCF 0.02180% 5th 0
135 PMCF 0.07180% 5th 15
137 PMCF 0.02180% 5th 0
143 PMCF 0.07180% 5th 0
150 PMCF 0.07180% 5th 0
152 PMCF 0.02180% 5th 0
157 PMCF 0.07180% 5th 0
INITIAL MASTER INITIAL MASTER
ID LOAN SPONSOR SERVICER SERVICING FEE RATE
--- -------------------------------------------------------------------------- -------------- ------------------
12 Xxxxxxxx Xxxxx, Xxxx Xxxxxx WFB 0.02050%
13 Danbury 6 Associates Limited Liability Company WFB 0.02050%
18 Xxxxxx Xxxxx WFB 0.02050%
00 Xxx Xxxxxxx Xxxxxxxx Partners III, LLC, Xxxxxxx Hotel Advisory Group, Inc. WFB 0.07050%
21 Xxxxxxxxx Realty Partners LLC WFB 0.02050%
25 Austi, Inc. WFB 0.07050%
27 Xxxxx X. Xxxxxxx, Xxxxx X. Xxx, Xxxxx X. Xxxxxxx, Xxxx X. Xxxx WFB 0.05050%
33 Xxxxxxx X. Xxxxxxx WFB 0.02050%
35 Xxxxxx X. Xxxx WFB 0.02050%
39 Xxxxxxxx X. Xxxxxx WFB 0.07050%
40 Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx WFB 0.07050%
49 Xxxxx X. Xxxxxxxxx WFB 0.02050%
00 Xxxxxxx Xxxxx, Xxxxxx Xxxxx Sugar WFB 0.07050%
00 Xxxxx X. Xxxxxx XXX 0.02050%
56 Xxxxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxx X. Xxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxx WFB 0.07050%
58 Xxxxx Xxxx, Xxxxxxxx Xxxxxxx WFB 0.07050%
60 Xxxxxxx X. Xxxxxxxxx, Siena Corporation WFB 0.02050%
68 Xxxxxxxx X. Xxxxxxxxxx, D. Xxxxxxx XxXxxxx WFB 0.02050%
71 Xxxxxxx X. Xxxxxx WFB 0.02050%
74 R. Xxxxx Xxxxx WFB 0.02050%
78 Xxxx X. Xxxxxxx, MV Partners Holding LLC WFB 0.07050%
80 Xxxxxxx X. Xxxxxxxxx, Siena Corporation WFB 0.02050%
81 Xxxxx X. Xxxxxx WFB 0.02050%
83 T. Xxxxxxx Xxxxxx WFB 0.07050%
87 Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx WFB 0.02050%
00 Xxxx X. XxXxxxxx, Xxxxxxx X. X'Xxxx, Xxxxxx X. Xxxxx WFB 0.02050%
94 Xxxxxx X. XxXxxxxxx, Xxxx X. XxXxxxxxx WFB 0.02050%
102 Xxxxx Xxxxx, Xxxxx X. Xxxxx, Xxxxxxx Xxxxx WFB 0.02050%
107 Xxxxxx Xxxxx, Xxxxx Xxxxxxxx WFB 0.07050%
111 North Star, Inc. WFB 0.07050%
115 Xxxx X. Xxxxxxxx, Xxx X. Xxxxxx, Xxxxx XxXxx, Xxxxxxx X. Xxxxx WFB 0.02050%
000 Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxxx XXX 0.02050%
127 HSPNT-1960 MGT, LLC, Xxxxx X. Shani, Xxxx X. Xxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx WFB 0.02050%
000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx XXX 0.07050%
133 Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxxx WFB 0.02050%
135 Xxxxxxx X. XxXxxxxx Xx., Xxxxxxx X. Xxxxx WFB 0.07050%
137 Xxxxxxxx X. Xxxxxxxx, Xxxxxxxx Xxxxxxxx WFB 0.02050%
143 Xxxxxxx X. Xxxxxx, Xxx X. Xxxxxx WFB 0.07050%
150 Kijulik Corporation Profit Sharing Trust WFB 0.07050%
152 Xxxxx Xxxxxxx WFB 0.02050%
157 Xxxx Xxxxxx WFB 0.07050%
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:
SECTION 19. 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.
SECTION 20. 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.
SECTION 21. 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
Ex. C-1
originator of the Mortgage Loan, the Mortgage Loan has not, to the Mortgage Loan
Seller's knowledge, been 60 days or more past due in respect of any Monthly
Payment (without giving effect to any applicable grace period) at any time since
the date of origination.
SECTION 22. 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
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the Mortgage Loan Seller) and constitutes a legal, valid, binding and, subject
to the exceptions set forth in Paragraph 13 below, enforceable assignment of
such Mortgage from the relevant assignor to the Trustee.
SECTION 23. Assignment of Leases and Rents. There exists, to be
included in the related Mortgage File as otherwise contemplated by this
Agreement, an Assignment of Leases, either as a separate instrument or as part
of the Mortgage, related to and delivered in connection with each Mortgage Loan
that establishes and creates a valid, subsisting and, subject to the exceptions
set forth in Paragraph 13 below, enforceable assignment of or first priority
lien on and security interest in, subject to applicable law, the property,
rights and interests of the related Borrower described therein; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Mortgage Loan Seller), and constitutes a legal, valid, binding
and, subject to the exceptions set forth in Paragraph 13 below, enforceable
assignment of such Assignment of Leases from the relevant assignor to the
Trustee. If an Assignment of Leases exists with respect to any Mortgage Loan
(whether as part of the related Mortgage or separately), then the related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for, upon an event of default under the Mortgage Loan, the appointment of a
receiver for the collection of rents or for the related mortgagee to enter into
possession to collect the rents or for rents to be paid directly to the
mortgagee.
SECTION 24. 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.
SECTION 25. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by a third
party engineering consultant and included in the Servicing File and which has
been the delivered to the initial Controlling Class Representative, the related
Mortgaged Property is, to the Mortgage Loan Seller's knowledge, free and clear
of any damage that would materially and adversely affect its value as security
for such Mortgage Loan (except in any such case where: (1) an escrow of funds or
insurance coverage or a letter of credit exists in an amount reasonably
estimated to be sufficient to effect the necessary repairs and maintenance; or
(2) such repairs and maintenance have been completed; or (3) such repairs and
maintenance are required to be completed and the amount reasonably estimated to
be sufficient to effect the necessary repairs and maintenance does not exceed 5%
of the original principal balance of the related Mortgage Loan). None of the
engineering reports referred to in the first sentence of this Paragraph 7 was
prepared more than 18 months prior to the Closing Date. As of the date hereof,
the Mortgage Loan Seller has no knowledge of any proceeding pending or written
notice of any proceeding threatened for the
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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.
SECTION 26. 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.
SECTION 27. 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.
SECTION 28. Mortgage Provisions. The Mortgage Loan Documents for
each Mortgage Loan, together with applicable state law, contain customary and,
subject to the
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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).
SECTION 29. 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.
SECTION 30. 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 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
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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) 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
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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.
SECTION 31. 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.
SECTION 32. Insurance. Except in certain cases where tenants, having
a net worth of at least $50,000,000 or an investment grade credit rating and
obligated to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each Mortgaged
Property securing a Mortgage Loan is the subject of a business interruption or
rent loss insurance policy providing coverage for at least twelve (12) months
(18 months for Mortgage Loans above $35 million) (or a specified dollar amount
which, in the reasonable judgment of the Mortgage Loan Seller, will cover no
less than twelve (12) months (18 months for Mortgage Loans above $35 million) of
rental income). Set forth on Schedule C (Representation 14) to this Agreement is
a list of those Mortgaged Properties as to which a tenant having a net worth of
at least $50,000,000 or an investment grade rating provided self-insurance, as
contemplated by the second preceding sentence, as of the date of origination of
the subject Mortgage Loan. All such hazard insurance policies described above
contain a standard mortgagee clause for the benefit of the holder of the related
Mortgage, its successors and assigns,
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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.
SECTION 33. 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.
SECTION 34. 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.
SECTION 35. Local Law Compliance. To the Mortgage Loan Seller's
knowledge, based upon any of a letter from governmental authorities, a legal
opinion, an
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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.
SECTION 36. Leasehold Estate Only. If any Mortgage Loan is secured
by the interest of a Borrower as a lessee under a ground lease of all or a
material portion of a Mortgaged Property (together with any and all written
amendments and modifications thereof and any and all estoppels from or other
agreements with the ground lessor, a "Ground Lease"), but not by the related fee
interest in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(a) Such Ground Lease or a memorandum thereof has been submitted
for recording; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material change
in the terms of such Ground Lease since its recordation, with the exception of
material changes reflected in written instruments which are a part of the
related Mortgage File;
(b) The related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable
to, and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is required,
it either has been obtained or cannot be unreasonably withheld; provided that
such Ground Lease has not been terminated and all amounts owed thereunder have
been paid). If required by such Ground Lease, the lessor has
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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
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(j) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the mortgagee without
the prior written consent of the mortgagee under such Mortgage Loan, and any
such action without such consent is not binding on such mortgagee, its
successors or assigns, provided that such mortgagee has provided the ground
lessor with notice of its lien in accordance with the terms of such Ground
Lease.
SECTION 37. 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)).
SECTION 38. 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.
SECTION 39. 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.
SECTION 40. 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.
SECTION 41. 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
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Mortgage Loan Seller's knowledge, except for cases involving
Cross-Collateralized Mortgage Loans, none of the Mortgaged Properties securing
the Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. Each of the related Mortgage
Loan Documents requires the Borrower to pay all reasonable costs and expenses
related to obtaining consent to an encumbrance.
SECTION 42. 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.
SECTION 43. Compliance. Each Mortgage Loan complied with, or was
exempt from, all applicable usury laws in effect at its date of origination.
SECTION 44. 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.
SECTION 45. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool.
SECTION 46. 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
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Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Mortgage Loan Seller did not give any material
value in underwriting the Mortgage Loan. With respect to any full or partial
release or substitution of collateral, as contemplated by the provisos to the
immediately preceding sentence, either: (a) such release or substitution of
collateral (i) would not constitute a "significant modification" of the subject
Mortgage Loan within the meaning of Treasury Regulations Section 1.860G-2(b)(2)
and (ii) would not cause the subject Mortgage Loan to fail to be a "qualified
mortgage" within the meaning of Section 860G(a)(3)(A) of the Code; or (b) the
mortgagee or servicer can, in accordance with the related Mortgage Loan
Documents, condition such release or substitution of collateral on the related
Borrower's delivery of an opinion of tax counsel to the effect specified in the
immediately preceding clause (a).
SECTION 47. 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.
SECTION 48. 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.
SECTION 49. 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.
SECTION 50. 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
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cover any default, breach, violation or event of acceleration that specifically
pertains to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Mortgage Loan Seller in this Exhibit C.
Neither the Mortgage Loan Seller nor any servicer on behalf of the Mortgage Loan
Seller has accelerated the Mortgage Loan or commenced judicial or non-judicial
foreclosure proceedings with respect to the Mortgage Loan.
SECTION 51. 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.
SECTION 52. 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.
SECTION 53. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
SECTION 54. 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
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of the Borrower's business on the related Mortgaged Property, subject only to
purchase money security interests, personal property leases and security
interests to secure revolving lines of credit and similar financing; and (b) one
or more Uniform Commercial Code financing statements covering such personal
property have been filed or recorded (or have been sent for filing or recording)
wherever necessary to perfect under applicable law such security interests (to
the extent a security interest in such personal property can be perfected by the
filing of a Uniform Commercial Code financing statement under applicable law).
The related assignment of such security interest (but for insertion of the name
of the assignee and any related information which is not yet available to the
Mortgage Loan Seller) executed and delivered in favor of the Trustee constitutes
a legal, valid and binding assignment thereof from the relevant assignor to the
Trustee.
SECTION 55. 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).
SECTION 56. [RESERVED]
SECTION 57. [RESERVED]
SECTION 58. 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.
SECTION 59. Assignment of Collateral. There is no material
collateral securing any Mortgage Loan that has not been assigned to the
Purchaser.
SECTION 60. 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.
SECTION 61. 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
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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.
SECTION 62. 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 $3,500,000 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.
SECTION 63. 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.
SECTION 64. No Capital Contributions. The Mortgage Loan Seller has
no obligation to make any capital contributions to the related Borrower under
the Mortgage Loan.
SECTION 65. 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.
SECTION 66. 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.
SECTION 67. 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.
SECTION 68. Loan Servicing. The servicing practices used with
respect to each Mortgage Loan have been in all material respects legal, proper,
and prudent.
SECTION 69. 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,
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the related all risk insurance policy and business interruption policy do not
specifically exclude acts of terrorism from coverage. With respect to each other
Mortgage Loan, the related all risk insurance policy and business interruption
policy did not as of the date of origination of the Mortgage Loan, and, to the
Mortgage Loan Seller's knowledge, does not as of the date hereof, specifically
exclude acts of terrorism from coverage. With respect to each of the Mortgage
Loans, the related Mortgage Loan Documents do not expressly waive or prohibit
the mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule C to this Agreement.
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SCHEDULE C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Note: The Mortgage Loans known as ezStorage-Columbia and ezStorage-Arbutus (Loan
Nos. 6106282 and 6106281), are each structured with the related promissory note
secured by a guaranty agreement (rather than a deed of trust), which guaranty
agreement from the related property owner, in favor of the lender covers all of
the obligations under the related promissory note. All of the obligations under
the related guaranty agreement are secured by an indemnity deed of trust
("IDOT"). With respect to certain of the representation and warranties, with
respect to these Mortgage Loans, statements regarding the borrower relate to the
guarantor, as the owner of the respective Mortgaged Property.
EXCEPTION TO REPRESENTATION 4 (LIEN, VALID ASSIGNMENT)
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MORTGAGE LOAN EXCEPTION
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Loan No. 157 (The Malibu) One of the parcels at the Mortgaged Property is an
easement over an adjacent parcel that contains the
pool that the hotel guests use. There is a lien on
the adjacent parcel (not part of the collateral) in
favor of another lender and such lien shows up as
senior to the lien in favor of the lender under the
title policy, solely with respect to the easement
parcel. However, the Mortgage Loan is fully recourse
to both borrower and guarantor.
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EXCEPTION TO REPRESENTATION 14 (INSURANCE)
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MORTGAGE LOAN EXCEPTION
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Loan Xx. 00 (XxXxxx Xxxxxxxx Xxxxxx) The borrower maintains $10,000,000 in coverage for
real and personal property damage and business
interruption. Depending on the type of loss at the
Mortgaged Property, the coverage may or may not
satisfy the coverages required by the representation.
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Loan No. 52 (Beltline at Quorum Properties) The tenants at three ground leased pad sites at the
Mortgaged Property provide self-insurance.
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Loan Xx. 000 (Xxxxxxxx Xxxxxxxx Xxxxxx) The tenants at two ground leased pad sites at the
Mortgaged Property provide insurance that does not
name the lender as either mortgagee
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Sch. C-1
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or additional insured.
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Loan No. 130 (Fullerton Industrial) The rent loss insurance policy relating to the
Mortgaged Property provides coverage for 6 months of
rental income.
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EXCEPTIONS TO REPRESENTATION 18 (LEASEHOLD ESTATE ONLY)
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MORTGAGE LOAN EXCEPTION
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Loan No. 92 (Olde Kingston Towne Center) Note: The Mortgaged Property consists of borrower's
sublessee leasehold interest in two ground subleases
("Borrower Subleases") and its derivative leasehold
interests in various ground subleases and a ground
lease (collectively, "Senior Leases").
With except to representation 18(e), the ground lease
does not provide that a termination notice is
ineffective against the mortgagee in the absence of
its delivery to the mortgagee.
With respect to representation 18(g), the ground
lease does not require the ground lessor to enter
into a new lease with the mortgagee upon the
termination of the ground lease upon the specified
events.
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EXCEPTIONS TO REPRESENTATION 28 (RELEASES OF MORTGAGED PROPERTIES)
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MORTGAGE LOAN EXCEPTION
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Loan No. 13 (Danbury Green) Subject to the satisfaction of certain conditions
specified in the loan documents, the borrower is
permitted to release a portion of the Mortgaged
Property that is currently being used for parking and
substitute an adjacent parcel not currently
constituting collateral, which is currently occupied
by an Exxon service station. The conditions include
the following: (i) prior to the removal or
obstruction of usage of any of the parking space
currently located on the release parcel, the borrower
must provide construction plans, a schedule, permit
and contracts relating to the construction of the new
parking area that is to be built on the replacement
parcel and escrow
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C-2
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with the lender 125% of the guaranteed maximum price
contained in the construction contract; (ii) the
lender must have received an updated environmental
site assessment of the replacement parcel, which
confirms that certain specified remediation work has
been completed; and (iii) (A) if additional
remediation is required but the lender has approved
of the environmental condition of the replacement
parcel, the owner of the replacement parcel is
required to escrow 125% of the estimated cost of such
additional remediation, up to a maximum of $250,000,
and the exchange of parcels will then be effected or
(B) if additional remediation is required but the
lender has accepted the environmental condition of
the replacement parcel, the borrower is required to
exchange the parcel it holds in fee for a parcel that
it will hold under a ground lease. Such replacement
parcel, if ground leased, is required to have at
least a 30-year term for a nominal ground rent and
will contain a purchase option enabling the borrower
to purchase the parcel for a nominal sum. The
borrower will not be permitted to exercise the
purchase option until the lender is satisfied with
the environmental condition of the replacement
parcel.
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Loan Xx. 00 (Xxxxxx Xxxx Self Storage) The borrower has the right to obtain the release from
the lien of the Mortgage an approximately 4.52 acre
portion of the Mortgaged Property consisting of
vacant land, subject to satisfaction of legal and
underwriting requirements. No value was given to this
portion of the Mortgaged Property in the underwriting
nor is this portion included in the appraised value
of the Mortgaged Property.
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EXCEPTIONS TO REPRESENTATION 33 (DUE-ON-SALE)
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MORTGAGE LOAN EXCEPTION
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Loan No. 58 (Xxxx Medical Office Building) The loan documents permit the equity owners of the
borrower to incur mezzanine debt subject to
satisfaction of various conditions specified in such
documents, generally
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C-3
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including the satisfaction of LTV and DSCR tests.
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EXCEPTION TO REPRESENTATION 34 (SINGLE PURPOSE ENTITY)
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MORTGAGE LOAN EXCEPTION
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Loan No. 25 (Xxxxxxx Corporate Center IV) The borrower is permitted to maintain its books and
records with those of its affiliates, provided its
books and records are in a form that can be separated
from its affiliates.
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EXCEPTION TO REPRESENTATION 47 (GRACE PERIODS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 94 (Sunset Manor Apartments) The Mortgage Loan permits a 15 day grace period for
Monthly Payments (excluding the payment due at
maturity).
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EXCEPTION TO REPRESENTATION 49 (TAX PARCELS)
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MORTGAGE LOAN EXCEPTION
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Loan No. 92 (Olde Kingston Towne Center) The portion of the Mortgaged Property, Tract "E", is
not a separate tax parcel. The borrower is required
to use reasonable efforts to cause this land to be
considered a separate tax lot and the recourse
carveout guarantor has provided an indemnity with
respect to losses incurred as a result of a failure
by the borrower or any adjacent property owner to pay
on a timely basis all real estate taxes with respect
to any tax parcel of which Tract "E" of the Mortgaged
Property is a part.
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C-4
SCHEDULE C (REPRESENTATION 14)
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MORTGAGE LOAN TENANT THAT IS SELF-INSURING
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Loan Xx. 00 (Xx Xxxx Xxxxxxxx Xxxxxx) A portion of the coverage for the replacement cost of
the property is carried by Kmart, which under its
lease with the borrower, is only required to carry
coverage for 80% of replacement cost of its premises
and subject to maintaining at least a $100,000,000
net worth, is permitted to self-insure with respect
to the remaining 20%.
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X-0
XXXXXXX X-0
FORM OF CERTIFICATE OF THE SECRETARY OR AN
ASSISTANT SECRETARY OF THE MORTGAGE LOAN SELLER
Executed certificate attached at Tab 37.
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 March 8, 2006 (the "Mortgage Loan Purchase Agreement")
among PMCF as seller and Bear Xxxxxxx Commercial Mortgage Securities II 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 21st day of March, 2006.
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 87.
Ex. D-3A-1
EXHIBIT D-3B
FORM OF OPINION PURSUANT TO SECTION 7(VII)
Executed opinion attached at Tab 86.
Ex. D-3B-1
EXHIBIT D-3C
FORM OF OPINION PURSUANT TO SECTION 7(VIII)
Executed opinion attached at Tab 85.
Ex. D-3C-1
