EXECUTION VERSION
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this
"Agreement"),
is dated and effective as of September 12, 2007, between Nationwide
Life
Insurance Company ("Nationwide"), as seller (in such capacity,
together with its
successors and permitted assigns hereunder, the "Mortgage Loan
Seller"), and
Bear Stearns Commercial Mortgage Securities Inc. ("BSCMSI"), as
purchaser (in
such capacity, together with its successors and permitted assigns
hereunder, the
"Purchaser").
RECITALS
Nationwide desires to sell, assign, transfer, set over
and otherwise
convey to BSCMSI, without recourse, representation or warranty,
other than as
set forth herein, and BSCMSI desires to purchase, subject to the
terms and
conditions set forth herein, the multifamily and commercial
mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule
annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may
be amended
from time to time pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the
primary assets
of which will be a segregated pool of multifamily and commercial
mortgage loans
that includes the Mortgage Loans and certain other commercial and
multifamily
mortgage loans (collectively, the "Trust Mortgage Loans").
Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust
Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated
by Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies,
Inc., and
Fitch, Inc. (together, the "Rating Agencies"). Certain classes of
the
Certificates (the "Registered Certificates") will be registered
under the
Securities Act of 1933, as amended (the "Securities Act"). The
Trust will be
created and the Certificates will be issued pursuant to a pooling
and servicing
agreement to be dated as of September 1, 2007 (the "Pooling and
Servicing
Agreement"), among BSCMSI, as depositor (in such capacity, the
"Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a
"Master Servicer"), Wells Fargo Bank, National Association, as a
master servicer
(in such capacity, a "Master Servicer"), as certificate
administrator (in such
capacity, the "Certificate Administrator") and as tax administrator
(in such
capacity, the "Tax Administrator"), Centerline Servicing Inc., as a
special
servicer (a "Special Servicer"), and LaSalle Bank National
Association, as
trustee (the "Trustee"). Capitalized terms used but not otherwise
defined herein
shall have the respective meanings assigned to them in the Pooling
and Servicing
Agreement as in full force and effect on the Closing Date (as
defined in Section
1 hereof). It is anticipated that BSCMSI will transfer the Mortgage
Loans to the
Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
BSCMSI intends to sell the Registered Certificates to
Bear, Stearns
& Co. Inc. ("BSC") and Morgan Stanley & Co. Incorporated
("Morgan Stanley"; and
together with BSC in such capacity, the "Underwriters"), pursuant
to an
underwriting agreement, dated the date hereof (the "Underwriting
Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the
remaining
Certificates (the "Non-Registered Certificates") to BSC and Morgan
Stanley
(together in such capacities, the "Initial Purchasers") pursuant to
a
certificate purchase agreement, dated the date hereof (the
"Certificate Purchase
Agreement"), among BSCMSI and
the Initial Purchasers. The Registered Certificates are more fully
described in
the prospectus dated May 29, 2007 (the "Base Prospectus"), and the
supplement to
the Base Prospectus dated September 12, 2007 (the "Prospectus
Supplement"; and,
together with the Base Prospectus, the "Prospectus"), as each may
be amended or
supplemented at any time hereafter. The Non-Registered Certificates
are more
fully described in the private placement memorandum dated the date
hereof (the
"Memorandum"), as it may be amended or supplemented at any time
hereafter.
Nationwide 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 Nationwide, the
Depositor, the
Underwriters and the Initial Purchasers.
As used herein, "Regulation AB" means Subpart 229.1100
- Asset
Backed Securities (Regulation AB), 17 C.F.R.
ss.ss.229.1100-229.1123, as such
may be amended from time to time, and subject to such clarification
and
interpretation as have been provided by the Commission in the
adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70
Fed. Reg.
1,506-1,631 (January 7, 2005)) or by the staff of the Commission,
or as may be
provided by the Commission or its staff from time to time.
NOW, THEREFORE, in consideration of the premises and
the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan
Seller agrees to
sell, assign, transfer, set over and otherwise convey to the
Purchaser, without
recourse, representation or warranty, other than as set forth
herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject
to the terms
and conditions set forth herein, the Mortgage Loans. The purchase
and sale of
the Mortgage Loans shall take place on September 27, 2007 or such
other date as
shall be mutually acceptable to the parties hereto (the "Closing
Date"). As of
the Cut-off Date, the Mortgage Loans will have an aggregate
principal balance,
after application of all payments of principal due on the Mortgage
Loans on or
before such date, whether or not received, of $272,748,456, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall
equal the amount set forth as such purchase price in a letter dated
as of
September 27, 2007, between the parties to this Agreement, which
purchase price
excludes accrued interest and applicable deal expenses. The
Purchaser shall pay
such purchase price, plus interest accrued on the Mortgage Loans
from the
Cut-off Date to the Closing Date and any applicable deal expenses,
to the
Mortgage Loan Seller on the Closing Date by wire transfer in
immediately
available funds or by such other method as shall be mutually
acceptable to the
parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
receipt of
the purchase price referred to in Section 1 hereof and the other
conditions to
the Mortgage Loan Seller's obligations set forth herein, the
Mortgage Loan
Seller does hereby sell, assign, transfer, set over and otherwise
convey to the
Purchaser, without recourse, representation or warranty, other than
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as set forth herein, all of the right, title and interest of the
Mortgage Loan
Seller in, to and under the Mortgage Loans and all documents
included in the
related Mortgage Files and Servicing Files. Such assignment
includes all
scheduled payments of principal and interest under and proceeds of
the Mortgage
Loans received after their respective Cut-off Dates (other than
scheduled
payments of interest and principal due on or before their
respective Cut-off
Dates, which amounts shall belong and be promptly remitted to the
Mortgage Loan
Seller) together with all documents delivered or caused to be
delivered
hereunder with respect to such Mortgage Loans by the Mortgage Loan
Seller
(including all documents included in the related Mortgage Files and
Servicing
Files and any related Additional Collateral). The Purchaser shall
be entitled to
receive all scheduled payments of principal and interest due on the
Mortgage
Loans after their respective Cut-off Dates, and all other
recoveries of
principal and interest collected thereon after their respective
Cut-off Dates
(other than scheduled payments of principal and interest due on the
Mortgage
Loans on or before their respective Cut-off Dates and collected
after such
respective Cut-off Dates, which amounts shall belong to the
Mortgage Loan
Seller). In no event, however, shall such conveyance and assignment
constitute
or be construed as an assumption by the Purchaser of, in the case
of any
Mortgage Loan that is part of a Mortgage Loan Group, any obligation
or liability
that is imposed only on the initial holder of such Mortgage Loan
under the terms
of the related Mortgage Loan Group Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the
Mortgage Loans to
the Purchaser, as provided herein, the Mortgage Loan Seller shall
not take any
action inconsistent with the Purchaser's ownership of the Mortgage
Loans. Except
for actions that are the express responsibility of another party
hereunder or
under the Pooling and Servicing Agreement, and further except for
actions that
the Mortgage Loan Seller is expressly permitted to complete
subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the
Closing Date,
take all actions required under applicable law to effectuate the
transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the
related rights
and property accomplished hereby is intended by the parties hereto
to constitute
a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right,
title and interest in and to such Mortgage Loans and such other
related rights
and property by the Mortgage Loan Seller to the Purchaser.
Furthermore, it is
not intended that such conveyance be a pledge of security for a
loan. If such
conveyance is determined to be a pledge of security for a loan,
however, then:
(i) this Agreement shall constitute a security agreement under
applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to
the Purchaser a
first priority security interest in all of the Mortgage Loan
Seller's right,
title and interest in and to the Mortgage Loans and all amounts
payable to the
holder(s) of the Mortgage Loans in accordance with the terms
thereof (other than
scheduled payments of interest and principal due and payable on
such Mortgage
Loans on or prior to their respective Cut-Off Dates or, in the case
of a
Replacement Pooled Mortgage Loan, on or prior to the related date
of
substitution); (iii) the assignment by BSCMSI to the Trustee of its
interests in
the Mortgage Loans as contemplated by Section 15 hereof shall be
deemed to be an
assignment of any security interest created hereunder; (iv) the
possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes
with respect
to the Mortgage Loans subject hereto from time to time and such
other items of
property as constitute instruments, money, negotiable documents or
chattel paper
shall be deemed to be "possession by the secured party" or
possession by a
purchaser or person designated by such secured party for the
purpose of
perfecting such security
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interest under applicable law; and (v) notifications to, and
acknowledgments,
receipts or confirmations from, Persons holding such property,
shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from,
securities intermediaries, bailees or agents (as applicable) of the
Purchaser
for the purpose of perfecting such security interest under
applicable law. The
Mortgage Loan Seller and the Purchaser shall, to the extent
consistent with this
Agreement, take such actions as may be reasonably necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be a perfected security interest of
first priority
under applicable law and will be maintained as such throughout the
term of this
Agreement and the Pooling and Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's
assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its
expense, shall
deliver to and deposit with, or cause to be delivered to and
deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing
Date, the
Mortgage Note for each Mortgage Loan so assigned, endorsed to the
Trustee as
specified in clause (i) of the definition of "Mortgage File", and
on or before
the date that is 45 days following the Closing Date, the remainder
of the
Mortgage File for each Mortgage Loan and any Additional Collateral
(other than
original Letters of Credit and Reserve Funds, which shall be
transferred to the
Trustee or to the applicable Master Servicer) for each Mortgage
Loan.
Notwithstanding the preceding sentence, if the Mortgage Loan Seller
cannot so
deliver, or cause to be delivered, as to any Mortgage Loan
(exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage
Loan), the
original or a copy of any of the documents and/or instruments
referred to in
clauses (ii), (iii), (vii) and (ix)(A) of the definition of
"Mortgage File",
with evidence of recording or filing (if applicable, and as the
case may be)
thereon, solely because of a delay caused by the public recording
or filing
office where such document or instrument has been delivered for
recordation or
filing, as the case may be, then (subject to the obligation of the
Mortgage Loan
Seller to nonetheless (1) from time to time make or cause to be
made reasonably
diligent efforts to obtain such document or instrument (with such
evidence) if
it is not returned within a reasonable period after the date when
it was
transmitted for recording and (2) deliver such document or
instrument to the
Trustee or a Custodian appointed thereby (if such document or
instrument is not
otherwise returned to the Trustee or such Custodian) promptly upon
the Mortgage
Loan Seller's receipt thereof), so long as a copy of such document
or
instrument, certified by the Mortgage Loan Seller or title agent as
being a copy
of the document deposited for recording or filing and (in the case
of such
clause (ii)) accompanied by an Officer's Certificate of the
Mortgage Loan Seller
or a statement from the title agent to the effect that such
original Mortgage
has been sent to the appropriate public recording official for
recordation, has
been delivered to the Trustee on or before the date that is 45 days
following
the Closing Date, the delivery requirements of this subsection
shall be deemed
to have been satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File, and if
the Mortgage
Loan Seller cannot or does not so deliver, or cause to be
delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of
the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the
definition of
"Mortgage File", because such document or instrument has been
delivered for
recording or filing, as the case may be, then (subject to the
obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or
cause to be
made reasonably diligent efforts to obtain such document or
instrument (with
such evidence) if it is not returned within a reasonable period
after the date
when it was transmitted for recording and (2) deliver such document
or
instrument to the Trustee or a
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Custodian appointed thereby (if such document or instrument is not
otherwise
returned to the Trustee or such Custodian) promptly upon the
Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or
instrument,
certified by the Mortgage Loan Seller, a title agent or a recording
or filing
agent as being a copy of the document deposited for recording or
filing and
accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a
statement from the title agent that such document or instrument has
been sent to
the appropriate public recording official for recordation (except
that such
certification shall not be required if the Trustee is responsible
for
recordation of such document or instrument under the Pooling and
Servicing
Agreement and the Mortgage Loan Seller has delivered the original
unrecorded
document or instrument to the Trustee on or before the date that is
45 days
following the Closing Date), has been delivered to the Trustee on
or before the
date that is 45 days following the Closing Date, the delivery
requirements of
this subsection shall be deemed to have been satisfied as to such
missing item,
and such missing item shall be deemed to have been included in the
related
Mortgage File. In addition, with respect to each Mortgage Loan
(exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage
Loan) under
which any Additional Collateral is in the form of a Letter of
Credit as of the
Closing Date, the Mortgage Loan Seller shall cause to be prepared,
executed and
delivered to the issuer of each such Letter of Credit such notices,
assignments
and acknowledgments as are required under such Letter of Credit to
assign,
without recourse, to the Trustee the Mortgage Loan Seller's rights
as the
beneficiary thereof and drawing party thereunder. Furthermore, with
respect to
each Mortgage Loan, if any, as to which there exists a secured
creditor impaired
property insurance policy or pollution limited liability
environmental
impairment policy covering the related Mortgaged Property, the
Mortgage Loan
Seller shall cause such policy, within a reasonable period
following the Closing
Date, to inure to the benefit of the Trustee for the benefit of the
Certificateholders (if and to the extent that it does not by its
terms
automatically inure to the holder of such Mortgage Loan). For
purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the
definition of
such term set forth in the Pooling and Servicing Agreement as in
full force and
effect on the Closing Date.
(d) As soon as reasonably possible, and in any event
within 45
days after the later of (i) the Closing Date (or in the case of a
Replacement
Pooled Mortgage Loan substituted as contemplated by Section 2.03 of
the Pooling
and Servicing Agreement, after the related date of substitution)
and (ii) the
date on which all recording information necessary to complete the
subject
document is received by the Mortgage Loan Seller, the Mortgage Loan
Seller shall
complete (to the extent necessary), and shall submit for recording
or filing, as
the case may be, including via electronic means, if appropriate, in
or with the
appropriate office for real property records or UCC Financing
Statements, as
applicable, each assignment of Mortgage and assignment of
Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment
of Leases that
has been recorded in the name of MERS or its designee) in favor of
the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in
the Pooling
and Servicing Agreement and each assignment of UCC Financing
Statement (except
with respect to any UCC Financing Statement that has been recorded
in the name
of MERS or its designee) in favor of the Trustee referred to in
clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing
Agreement.
Each such assignment shall reflect that it should be returned by
the public
recording office to the Trustee or Mortgage Loan Seller's designee
following
recording, and each such assignment of UCC Financing Statement
shall reflect
that the file copy thereof or an appropriate receipt therefor, as
applicable,
should be returned to the Trustee or Mortgage Loan Seller's
designee following
filing; provided that in those instances where the
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public recording office retains the original assignment of Mortgage
or
assignment of Assignment of Leases the Trustee shall obtain
therefrom a copy of
the recorded original. If the Mortgage Loan Seller's designee has
been appointed
to receive such assignment or such UCC Financing Statement
following filing with
the public recording office, the Mortgage Loan Seller's designee
shall, within a
reasonable time period, deliver such assignment or such UCC
Financing Statement
to the Trustee. If the Mortgage Loan Seller receives written notice
that any
assignment or other instrument of transfer with respect to the
Mortgage Loans is
lost or returned unrecorded or unfiled, as the case may be, because
of a defect
therein, the Mortgage Loan Seller shall prepare or cause the
preparation of a
substitute therefor or cure such defect, as the case may be. The
Mortgage Loan
Seller shall be responsible for paying, pursuant to a separate
agreement and not
pursuant to this Agreement, an upfront fee to the Trustee in
connection with the
forwarding of any proof of recording and/or any proof of filing of
assignments
or 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. With respect to each Mortgage, Assignment of
Leases and UCC
Financing Statement that has been recorded in the name of MERS or
its designee
(if any), the Mortgage Loan Seller shall take all actions as are
necessary to
cause the Trustee to be shown as the owner of such Mortgage,
Assignment of
Leases or UCC Financing Statement on the records of MERS.
(e) In connection with the Mortgage Loan Seller's
assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its
expense, shall
deliver to and deposit with, or cause to be delivered to and
deposited with, the
applicable Master Servicer, on or before the date that is 45 days
after the
Closing Date, in the case of the items in clause (i) below, and 20
days after
the Closing Date, in the case of the items in clause (ii) below,
the following
items (except to the extent that any of the following items are to
be retained
by a Primary Servicer or Sub-Servicer that will continue to act on
behalf of the
applicable Master Servicer as contemplated by the Pooling and
Servicing
Agreement and a Primary Servicing Agreement or Sub-Servicing
Agreement and
except to the extent that any of the following items relate to any
Mortgage Loan
that constitutes a Non-Trust-Serviced Pooled Mortgage Loan): (i)
originals or
copies of all financial statements, appraisals,
environmental/engineering
reports, transaction screens, seismic assessment reports, leases,
rent rolls,
insurance policies and certificates, major space leases, legal
opinions and
tenant estoppels and any other relevant documents relating to the
origination
and servicing of any Mortgage Loan that are reasonably necessary
for the ongoing
administration and/or servicing of the applicable Mortgage Loan in
the
possession or under the control of the Mortgage Loan Seller that
relate to the
Mortgage Loans transferred by it to the Purchaser and, to the
extent that any
original documents are not required to be a part of a Mortgage File
for any such
Mortgage Loan, originals or copies of all documents, certificates
and opinions
in the possession or under the control of the Mortgage Loan Seller
that were
delivered by or on behalf of the related Borrowers in connection
with the
origination of such Mortgage Loans (provided that the Mortgage Loan
Seller shall
not be required to deliver any attorney-client privileged
communication, draft
documents or any documents or materials prepared by it or its
Affiliates for
internal uses, including without limitation, credit committee
briefs or
memoranda and other internal approval documents); and (ii) all
unapplied Reserve
Funds and Escrow Payments in the possession or under the control of
the Mortgage
Loan Seller that relate to the Mortgage Loans.
(f) Under generally accepted accounting principles
("GAAP") and
for federal income tax purposes, the Mortgage Loan Seller shall
report its
transfer of the Mortgage Loans to
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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
hereby makes, as of the Closing Date, to and for the benefit of the
Mortgage
Loan Seller, each of the representations and warranties set forth
in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the
Closing Date
(or as of such other date specifically provided in the particular
representation
or warranty), to and for the benefit of the Purchaser, each of the
representations and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and
warrants, as of
the Closing Date, to and for the benefit of BSCMSI only, that the
Mortgage Loan
Seller has not dealt with any broker, investment banker, agent or
other person
(other than the Depositor, the Underwriters and the Initial
Purchasers) who may
be entitled to any commission or compensation in connection with
the sale to the
Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and
warrants that,
with respect to the Mortgage Loans and the Mortgage Loan Seller's
role as
"originator" (or the role of
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any third party as "originator" of any Mortgage Loan for which the
Mortgage Loan
Seller was not the originator) and "sponsor" in connection with the
issuance of
the Registered Certificates, the information regarding the Mortgage
Loans, the
related Borrowers, the related Mortgaged Properties and/or the
Mortgage Loan
Seller contained in the Prospectus Supplement complies in all
material respects
with the applicable disclosure requirements of Regulation AB.
(e) For so long as the Trust is subject to the
reporting
requirements of the Exchange Act, the Mortgage Loan Seller hereby
agrees to
provide the Purchaser (or with respect to any Serviced Non-Pooled
Pari Passu
Companion Loan that is deposited into an Other Securitization, the
depositor in
such Other Securitization) and the Certificate Administrator with
any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure
opposite which
"Pooled Mortgage Loan Seller" is set forth on Schedule IX and
Schedule X to the
Pooling and Servicing Agreement within the time periods and in
accordance with
the provisions set forth in the Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it
shall be deemed
to make to and for the benefit of the Purchaser, as of the date of
substitution,
with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan")
that is substituted for a Defective Mortgage Loan, by the Mortgage
Loan Seller
pursuant to Section 5(a) of this Agreement, each of the
representations and
warranties set forth in Exhibit C to this Agreement. From and after
the date of
substitution, each Replacement Mortgage Loan, if any, shall be
deemed to
constitute a "Mortgage Loan" hereunder for all purposes. A
"Defective Mortgage
Loan" is any Mortgage Loan as to which there is an unremedied
Material Breach or
Material Document Defect.
(g) It is understood and agreed that the
representations and
warranties set forth in or made pursuant to this Section 4 shall
survive
delivery of the respective Mortgage Files to the Purchaser or its
designee and
shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) The Mortgage Loan Seller shall, not later than 90
days from
discovery by the Mortgage Loan Seller, or the receipt by the
Mortgage Loan
Seller of notice, of any Material Breach or Material Document
Defect with
respect to any Mortgage Loan (or, if such Material Breach or
Material Document
Defect, as the case may be, related to whether such Mortgage Loan
is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan,
as of the
related date of substitution), was a Qualified Mortgage, and
provided that the
Mortgage Loan Seller discovered or received prompt written notice
thereof,
within 90 days after any earlier discovery by the Mortgage Loan
Seller or any
party to the Pooling and Servicing Agreement of such Material
Breach or Material
Document Defect, as the case may be) (such 90-day period, in any
case, the
"Initial Resolution Period"), correct or cure such Material
Document Defect or
Material Breach, as the case may be, in all material respects, or
repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided
that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that
such Material
Document Defect or Material Breach, as the case may be, does not
relate to
whether the affected Mortgage Loan is or, as of the Closing Date
(or, in the
case of a Replacement Mortgage Loan, as of the related date of
substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect
or Material
Breach, as the case may be, is
-8-
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 "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.
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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 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
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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 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
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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 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
-12-
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,
787 Seventh
Avenue, New York, New York 10019 at 10:00 a.m., New York City time,
on the
Closing Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties of the
Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be
true and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this
Agreement (the
"Closing Documents"), in such forms as are agreed upon and
reasonably
acceptable to the Purchaser and, in the case of the Pooling
and Servicing
Agreement (insofar as such Agreement affects the obligations
of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller,
shall be
duly executed and delivered by all signatories as required
pursuant to the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and
released to
the Purchaser or its designee, all documents, funds and other
assets
required to be delivered thereto pursuant to Section 2 of
this Agreement;
(iv) The result of any examination of the Mortgage
Files for, and
any other documents and records relating to, the Mortgage
Loans performed
by or on behalf of the Purchaser pursuant to Section 3 hereof
shall be
satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement
required to be
complied with on or before the Closing Date shall have been
complied with
in all material respects,
-13-
and the Mortgage Loan Seller shall have the ability to comply
with all
terms and conditions and perform all duties and obligations
required to be
complied with or performed by it after the Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees
and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement;
(vii) the Mortgage Loan Seller shall have received the
purchase
price for the Mortgage Loans, as contemplated by Section 1;
and
(viii) Neither the Underwriting Agreement nor the
Certificate
Purchase Agreement shall have been terminated in accordance
with its
terms.
Each of the parties agrees to use their commercially
reasonable best
efforts to perform their respective obligations hereunder in a
manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 7. Closing Documents. The Purchaser or its
designee shall
have received all of the following Closing Documents, in such forms
as are
agreed upon and acceptable to the Purchaser, the Underwriters, the
Initial
Purchasers and the Rating Agencies (collectively, the "Interested
Parties"), and
upon which the Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and
the Mortgage
Loan Seller;
(ii) Each of the Pooling and Servicing Agreement and
the
Indemnification Agreement, duly executed by the respective
parties
thereto;
(iii) An Officer's Certificate substantially in the
form of Exhibit
D-1 hereto, executed by the Secretary or an assistant
secretary of the
Mortgage Loan Seller, in his or her individual capacity, and
dated the
Closing Date, and upon which the Interested Parties may rely,
attaching
thereto as exhibits (A) the resolutions of the board of
directors of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's
entering into
the transactions contemplated by this Agreement and the
Indemnification
Agreement, and (B) the organizational documents of the
Mortgage Loan
Seller;
(iv) A certificate of good standing with respect to the
Mortgage
Loan Seller issued by the secretary of state of the State of
Ohio 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
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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 Thacher Proffitt & Wood
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 Thacher Proffitt & Wood LLP,
special counsel
for the Mortgage Loan Seller, dated the Closing Date and
addressed to
BSCMSI and the Underwriters, which letter shall be
substantially in the
form of Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel
for the
Mortgage Loan Seller to the Rating Agencies in connection
with the
transactions contemplated by this Agreement, including, but
not limited
to, with respect to the characterization of the transfer of
the Mortgage
Loans hereunder as a true sale, with each such opinion to be
addressed to
the other Interested Parties and the Trustee or accompanied
by a letter
signed by such counsel stating that the other Interested
Parties and the
Trustee may rely on such opinion as if it were addressed to
them as of
date thereof;
(x) One or more comfort letters from Deloitte &
Touche LLP,
certified public accountants, dated the date of any
preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum,
respectively,
and addressed to, and in form and substance acceptable to,
the Interested
Parties (other than the Rating Agencies), stating in effect
that, using
the assumptions and methodology used by BSCMSI or the
Underwriters, as
applicable, all of which shall be described in such letters,
they have
recalculated such numbers and percentages relating to the
Mortgage Loans
set forth in any preliminary Prospectus Supplement, the
Prospectus
Supplement and the Memorandum, compared the results of their
calculations
to the corresponding items in any preliminary Prospectus
Supplement, the
Prospectus Supplement and the Memorandum, respectively, and
found each
such number and percentage set forth in any preliminary
Prospectus
Supplement, the Prospectus Supplement and the Memorandum,
respectively, to
be in agreement with the results of such calculations; and
(xi) Such further certificates, opinions and documents
as the
Purchaser may reasonably request or any Rating Agency may
require.
SECTION 8. Costs. Whether or not this Agreement is
terminated, the
costs and expenses incurred in connection with the transactions
herein
contemplated shall be allocated pursuant to the terms of a
settlement statement
dated the Closing Date.
SECTION 9. Notices. All demands, notices and
communications
hereunder shall be in writing and shall be deemed to have been duly
given if
personally delivered to or mailed, by registered mail, postage
prepaid, by
overnight mail or courier service, or transmitted by facsimile and
confirmed by
similar mailed writing, if to the Purchaser, addressed to the
Purchaser at 383
Madison Avenue, New York, New York 10179, Attention: J. Christopher
Hoeffel,
Senior Managing Director, Commercial Mortgage Department (with
copies to the
-15-
attention of Joseph T. Jurkowski, Jr., 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 One Nationwide Plaza 1-34-02, Columbus, Ohio 43215,
Attention:
Ric Phipps, or such other address as may be designated by the
Mortgage Loan
Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor
any term or
provision hereof may be changed, waived, discharged or terminated
except by a
writing signed by a duly authorized officer of the party against
whom
enforcement of such change, waiver, discharge or termination is
sought to be
enforced. This Agreement may be executed in any number of
counterparts, each of
which shall for all purposes be deemed to be an original and all of
which shall
together constitute but one and the same instrument. This Agreement
will inure
to the benefit of and be binding upon the parties hereto and their
respective
successors and assigns, and no other person will have any right or
obligation
hereunder. Notwithstanding any contrary provision of this Agreement
or the
Pooling and Servicing Agreement, the Purchaser shall not consent to
any
amendment of the Pooling and Servicing Agreement which will
increase the
obligations of, or otherwise adversely affect, the Mortgage Loan
Seller, without
the consent of the Mortgage Loan Seller.
SECTION 11. Representations, Warranties and Agreements
to Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Mortgage Loan Seller delivered pursuant hereto,
shall remain
operative and in full force and effect and shall survive delivery
of the
Mortgage Loans by the Mortgage Loan Seller to BSCMSI and by BSCMSI
to the Trust,
notwithstanding any restrictive or qualified endorsement or
assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part,
provision,
representation, warranty or covenant of this Agreement that is
prohibited or is
held to be void or unenforceable shall be ineffective to the extent
of such
prohibition or unenforceability without invalidating the remaining
provisions
hereof. Any part, provision, representation, warranty or covenant
of this
Agreement that is prohibited or is held to be void or unenforceable
in any
particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or
unenforceability in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction;
Waiver of Trial
by Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS
NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER
HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH
-16-
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, BSCMSI is expressly authorized to assign
its rights
under this Agreement, in whole or in part, to the Trustee for the
benefit of the
registered holders and beneficial owners of the Certificates. To
the extent of
any such assignment, the Trustee, for the benefit of the registered
holders and
beneficial owners of the Certificates, shall be the Purchaser
hereunder. Subject
to the foregoing, this Agreement shall bind and inure to the
benefit of and be
enforceable by the Mortgage Loan Seller and the Purchaser, and
their respective
successors and permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall
provide the
Purchaser with such information about itself, the Mortgage Loans
and the
underwriting and servicing procedures applicable to the Mortgage
Loans as is (i)
customary in commercial mortgage loan securitization transactions,
(ii) required
by a Rating Agency or a governmental agency or body or (iii)
reasonably
requested by the Purchaser for use in a public or private
disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans.
Notwithstanding
anything herein to the contrary, it is hereby acknowledged that
certain groups
of Mortgage Loans are, in the case of each such particular group of
Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted
and cross-collateralized, if identified as such on the Mortgage
Loan Schedule.
For purposes of reference, the Mortgaged Property that relates or
corresponds to
any of the Mortgage Loans referred to in this Section 17 shall be
the property
identified in the Mortgage Loan Schedule as corresponding thereto.
The
provisions of this Agreement, including, without limitation, each
of the
representations and warranties set forth in
-17-
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]
-18-
IN WITNESS WHEREOF, the Mortgage Loan Seller and the
Purchaser have
caused this Agreement to be duly executed by their respective
officers as of the
day and year first above written.
NATIONWIDE LIFE INSURANCE
COMPANY
By: /s/ Robert J. Maloney
---------------------------------------
Name: Robert J. Maloney
Title: Investment Leader,
Real Estate
Investments
Authorized Signatory
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Adam Ansaldi
---------------------------------------
Name: Adam Ansaldi
Title: Vice President
NATIONWIDE MLPA
EXHIBIT A
SCHEDULE OF NATIONWIDE POOLED MORTGAGE LOANS
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC., SERIES 2007-PWR17
MORTGAGE LOAN SCHEDULE
SELLER CMSA CMSA
LOAN ID ID LOAN NO. PROPERTY NO.
PROPERTY NAME (1)
--------------------------------------------------------------------------------------------------------
00-1101533 5 5 5-001
Westin Building
00-1101494 27 27 27-001
All Seasons of Rochester Hills
--------------------------------------------------------------------------------------------------------
00-1101099 / 00-1101107 40 40 40-001
Town Center Plaza
00-1101517 63 63 63-001
Madison Square Shopping Center
00-1101476 72 72 72-001
Coastal Sunbelt Warehouse
00-1101464 78 78 78-001
Lakeland South Plaza
00-1101454 83 83 83-001
Hillcrest Shopping Center
--------------------------------------------------------------------------------------------------------
00-1101522 99 99 99-001
Hilton Garden Inn - Wichita
00-1101451 118 118
Iskalo Office and Retail Portfolio
00-1101451A 118-a 118-001
30 and 36 North Union Road
00-1101451B 118-b 118-002
4600 Main Street
00-1101451D 118-c 118-003
5454 Main Street
--------------------------------------------------------------------------------------------------------
00-1101451C 118-d 118-004
4610 Main Street
00-1101465 139 139 139-001
Alamo Plaza
00-1101482 143 143 143-001
PetSmart
00-1101487 152 152 152-001
Judge Building
00-1101472 156 156 156-001
Pleasant View Apartments
--------------------------------------------------------------------------------------------------------
00-1101519 170 170 170-001
Towne Centre Offices
00-1101515 176 176 176-001
Willow Run Apartments
00-1101470 178 178 178-001
BrandiCorp Ground Leases
00-1101461 180 180 180-001
County Line Crossing
00-1101455 181 181 181-001
Bridges at Smoky Hill
--------------------------------------------------------------------------------------------------------
00-1101503 193 193 193-001
FAL Building
00-1101468 206 206 206-001
Kennedy Crossing
00-1101492 209 209 209-001
Auto Palace
00-1101488 220 220 220-001
325 East Chicago Street Office
00-1101489 221 221 221-001
333 East Chicago Street Office
--------------------------------------------------------------------------------------------------------
00-1101187 222 222 222-001
Shoppes of Deerfield North
00-1101477 228 228 228-001
Summer Village
00-1100860 229 229 229-001
Beechwold Place
SELLER
LOAN ID ADDRESS
CITY STATE
------------------------------------------------------------------------------------------------------------------------------------
00-1101533 2001 6th Avenue
Seattle WA
00-1101494 175 East Nawakwa Drive
Rochester Hills MI
------------------------------------------------------------------------------------------------------------------------------------
00-1101099 / 00-1101107 8600 University City Boulevard
Charlotte NC
Brighton Avenue and Route 65 (West
Madison
00-1101517 Street)
Rochester PA
00-1101476 8704 Bollman Place
Savage MD
00-1101464 5255-5375 South Florida Avenue
Lakeland FL
3220 Leechburg
00-110
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