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EXECUTION VERSION
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this
"Agreement"), is
dated and effective as of December 6, 2006, 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 Fitch,
Inc. and Standard & Poor's, 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 December 1, 2006 (the "Pooling and Servicing
Agreement"), among
BSCMSI, as depositor (in such capacity, the "Depositor"),
Prudential Asset
Resources, Inc., as a master servicer (in such capacity, a
"Master Servicer")
and as loan specific special servicer, 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"), ARCap
Servicing,
Inc., as a special servicer (a "Special Servicer"), and LaSalle
Bank National
Association, as trustee (the "Trustee"). Capitalized terms used
but not
otherwise defined herein shall have the respective meanings
assigned to them in
the Pooling and Servicing Agreement as in full force and effect
on the Closing
Date (as defined in Section 1 hereof). It is anticipated that
BSCMSI will
transfer the Mortgage Loans to the Trust contemporaneously with
its purchase of
the Mortgage Loans hereunder.
BSCMSI intends to sell the Registered Certificates to Bear,
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 September 13, 2006 (the "Base Prospectus"),
and the
supplement to the Base Prospectus dated December 6, 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.
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. Sections
229.1100-229.1123, as such may be
amended from time to time, and subject to such clarification and
interpretation
as have been provided by the Commission in the adopting release
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506-1,631
(January 7, 2005)) or by the staff of the Commission, or as may
be provided by
the Commission or its staff from time to time.
NOW, THEREFORE, in consideration of the premises and the
mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller
agrees to
sell, assign, transfer, set over and otherwise convey to the
Purchaser, without
recourse, representation or warranty, other than as set forth
herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller,
subject to the terms
and conditions set forth herein, the Mortgage Loans. The
purchase and sale of
the Mortgage Loans shall take place on December 19, 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 $97,578,610,
subject to a variance
of plus or minus 5%. The purchase price for the Mortgage Loans
shall be
$103,486,793, 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
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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 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
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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 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
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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 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
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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;
(e) In connection with the Mortgage Loan Seller's assignment
pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense,
shall deliver
to and deposit with, or cause to be delivered to and deposited
with, the
applicable Master Servicer, on or before the date that is 45
days after the
Closing Date, in the case of the items in clause (i) below, and
20 days after
the Closing Date, in the case of the items in clause (ii) below,
the following
items (except to the extent that any of the following items are
to be retained
by a Primary Servicer or Sub-Servicer that will continue to act
on behalf of the
applicable Master Servicer as contemplated by the Pooling and
Servicing
Agreement and a Primary Servicing Agreement or Sub-Servicing
Agreement and
except to the extent that any of the following items relate to
any Mortgage Loan
that constitutes a Non-Trust-Serviced Pooled Mortgage Loan): (i)
originals or
copies of all financial statements, appraisals,
environmental/engineering
reports, transaction screens, seismic assessment reports,
leases, rent rolls,
insurance policies and certificates, major space leases, legal
opinions and
tenant estoppels and any other relevant documents relating to
the origination
and servicing of any Mortgage Loan that are reasonably necessary
for the ongoing
administration and/or servicing of the applicable Mortgage Loan
in the
possession or under the control of the Mortgage Loan Seller that
relate to the
Mortgage Loans transferred by it to the Purchaser and, to the
extent that any
original documents are not required to be a part of a Mortgage
File for any such
Mortgage Loan, originals or copies of all documents,
certificates and opinions
in the possession or under the control of the Mortgage Loan
Seller that were
delivered by or on behalf of the related Borrowers in connection
with the
origination of such Mortgage Loans (provided that the Mortgage
Loan Seller shall
not be required to deliver any attorney-client privileged
communication, draft
documents or any documents or materials prepared by it or its
Affiliates for
internal uses, including without limitation, credit committee
briefs or
memoranda and other internal approval documents); and (ii) all
unapplied Reserve
Funds and Escrow Payments in the possession or under the control
of the Mortgage
Loan Seller that relate to the Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and
for
federal income tax purposes, the Mortgage Loan Seller shall
report its transfer
of the Mortgage Loans to the Purchaser, as provided herein, as a
sale of the
Mortgage Loans to the Purchaser in exchange for the
consideration specified in
Section 1 hereof. In connection with the foregoing, the Mortgage
Loan Seller
shall cause all of its records to reflect such transfer as a
sale (as opposed to
a secured loan) and to reflect that the Mortgage Loans are no
longer property of
the Mortgage Loan Seller.
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(g) The Mortgage Loan Schedule, as it may be amended from time
to
time, shall conform to the requirements set forth in the Pooling
and Servicing
Agreement. The Mortgage Loan Seller shall, within 15 days of its
discovery or
receipt of notice of any error on the Mortgage Loan Schedule,
amend such
Mortgage Loan Schedule and deliver to the Purchaser or the
Trustee, as the case
may be, an amended Mortgage Loan Schedule; provided that this
sentence shall not
be construed to relieve the Mortgage Loan Seller of any
liability for any
related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with
any examination
of the Mortgage Files for, and any other documents and records
relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the
Purchaser on or
before the Closing Date. The fact that the Purchaser has
conducted or has failed
to conduct any partial or complete examination of any of the
Mortgage Files for,
and/or any of such other documents and records relating to, the
Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law for a breach of the Mortgage Loan Seller's
representations and
warranties made pursuant to Section 4, except as expressly set
forth in Section
5.
SECTION 4. Representations, Warranties and Covenants of the
Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing
Date
(and, in connection with any replacement of a Defective Mortgage
Loan (as
defined in Section 4(d) hereof) with one or more Replacement
Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section
5(a) hereof, as of
the related date of substitution), to and for the benefit of the
Purchaser, each
of the representations and warranties set forth in Exhibit B-1.
The Purchaser
hereby makes, as of the Closing Date, to and for the benefit of
the Mortgage
Loan Seller, each of the representations and warranties set
forth in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing
Date (or
as of such other date specifically provided in the particular
representation or
warranty), to and for the benefit of the Purchaser, each of the
representations
and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as
of the
Closing Date, to and for the benefit of BSCMSI only, that the
Mortgage Loan
Seller has not dealt with any broker, investment banker, agent
or other person
(other than the Depositor, the Underwriters and the Initial
Purchasers) who may
be entitled to any commission or compensation in connection with
the sale to the
Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and warrants
that, with
respect to the Mortgage Loans and the Mortgage Loan Seller's
role as
"originator" (or the role of any third party as "originator" of
any Mortgage
Loan for which the Mortgage Loan Seller was not the originator)
and "sponsor" in
connection with the issuance of the Registered Certificates, the
information
regarding the Mortgage Loans, the related Borrowers, the related
Mortgaged
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.
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(e) For so long as the Trust is subject to the reporting
requirements
of the Exchange Act, the Mortgage Loan Seller hereby agrees to
provide the
Purchaser (or with respect to any Serviced Non-Pooled Pari Passu
Companion Loan
that is deposited into an Other Securitization, the depositor in
such Other
Securitization) and the Certificate Administrator with any
Additional Form 10-D
Disclosure and any Additional Form 10-K Disclosure opposite
which "Pooled
Mortgage Loan Seller" is set forth on Schedule IX and Schedule X
to the Pooling
and Servicing Agreement within the time periods and in
accordance with the
provisions set forth in the Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be
deemed to
make to and for the benefit of the Purchaser, as of the date of
substitution,
with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan")
that is substituted for a Defective Mortgage Loan, by the
Mortgage Loan Seller
pursuant to Section 5(a) of this Agreement, each of the
representations and
warranties set forth in Exhibit C to this Agreement. From and
after the date of
substitution, each Replacement Mortgage Loan, if any, shall be
deemed to
constitute a "Mortgage Loan" hereunder for all purposes. A
"Defective Mortgage
Loan" is any Mortgage Loan as to which there is an unremedied
Material Breach or
Material Document Defect.
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall
survive
delivery of the respective Mortgage Files to the Purchaser or
its designee and
shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and
Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days
from
discovery by the Mortgage Loan Seller, or the receipt by the
Mortgage Loan
Seller of notice, of any Material Breach or Material Document
Defect with
respect to any Mortgage Loan (or, if such Material Breach or
Material Document
Defect, as the case may be, related to whether such Mortgage
Loan is, or as of
the Closing Date (or, in the case of a Replacement Mortgage
Loan, as of the
related date of substitution), was a Qualified Mortgage, and
provided that the
Mortgage Loan Seller discovered or received prompt written
notice thereof,
within 90 days after any earlier discovery by the Mortgage Loan
Seller or any
party to the Pooling and Servicing Agreement of such Material
Breach or Material
Document Defect, as the case may be) (such 90-day period, in any
case, the
"Initial Resolution Period"), correct or cure such Material
Document Defect or
Material Breach, as the case may be, in all material respects,
or repurchase the
affected Mortgage Loan at the applicable Purchase Price;
provided that if the
Mortgage Loan Seller certifies to the Trustee in writing (i)
that such Material
Document Defect or Material Breach, as the case may be, does not
relate to
whether the affected Mortgage Loan is or, as of the Closing Date
(or, in the
case of a Replacement Mortgage Loan, as of the related date of
substitution),
was a Qualified Mortgage, (ii) that such Material Document
Defect or Material
Breach, as the case may be, is capable of being cured but not
within the
applicable Initial Resolution Period, (iii) that such Mortgage
Loan Seller has
commenced and is diligently proceeding with the cure of such
Material Document
Defect or Material Breach, as the case may be, during the
applicable Initial
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
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Mortgage Loan Seller shall have an additional period equal to
any such
applicable Resolution Extension Period to complete such
correction or cure (or,
upon failure to complete such correction or cure, to repurchase
the affected
Mortgage Loan); and provided, further, that, in lieu of
repurchasing the
affected Mortgage Loan as contemplated above (but, in any event,
no later than
such repurchase would have to have been completed), such
Mortgage Loan Seller
shall be permitted, during the three-month period following the
Startup Day for
the REMIC Pool that holds the affected Mortgage Loan (or during
the two-year
period following such Startup Day if the affected Mortgage Loan
is a "defective
obligation" within the meaning of Section 860G(a)(4)(B)(ii) of
the Code and
Treasury regulation section 1.860G-2(f)), to replace the
affected Mortgage Loan
with one or more Qualifying Substitute Mortgage Loans and to pay
a cash amount
equal to the applicable Substitution Shortfall Amount. The
parties hereto agree
that delivery by the Trustee (or a Custodian on its behalf) of a
certification
or schedule of exceptions to the Mortgage Loan Seller pursuant
to the Pooling
and Servicing Agreement shall not in and of itself constitute
delivery of notice
of any Material Document Defect or knowledge of the Mortgage
Loan Seller of any
Material Document Defect therein. If any Mortgage Loan is to be
repurchased or
replaced as contemplated by this subsection, the Purchaser or
its designee shall
be entitled to designate the account to which funds in the
amount of the
applicable Purchase Price or Substitution Shortfall Amount (as
the case may be)
are to be wired. Any such repurchase or replacement of a
Mortgage Loan shall be
on a whole loan, servicing released basis. Notwithstanding this
subsection, the
absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or
a lost note affidavit and indemnity with a copy of the Mortgage
Note) and (ii)
by the first anniversary of the Closing Date of originals or
copies of the
following documents (without the presence of any factor that
reasonably
mitigates such absence, non-conformity or irregularity) or of
any Specially
Designated Mortgage Loan Document shall be conclusively presumed
to be a
Material Document Defect and shall obligate the Mortgage Loan
Seller to cure
such Material Document Defect, or, failing that, repurchase the
related Mortgage
Loan or REO Mortgage Loan, all in accordance with the procedures
set forth
herein: (a) the Mortgage and any separate Assignment of Leases
as described by
clauses (ii) and (iii) of the definition of "Mortgage File"; (b)
the title
insurance policy as described in clause (viii) of the definition
of "Mortgage
File" (or, if the policy has not yet been issued, an original or
copy of a
written commitment "marked-up" at the closing of such Mortgage
Loan, interim
binder or the pro forma title insurance policy, in each case
evidencing a
binding commitment to issue such policy); or (c) the assignment
of Mortgage (and
any separate Assignment of Leases) as described by clause (iv)
of the definition
of "Mortgage File". For purposes of this paragraph, the relevant
definition of
"Mortgage File" shall be the definition of such term set forth
in the Pooling
and Servicing Agreement as in full force and effect on the
Closing Date.
The remedies provided for in this subsection with respect to
any
Material Document Defect or Material Breach with respect to any
Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or
replaced as
described above, (y) such Defective Mortgage Loan is part of
a
Cross-Collateralized Group and (z) the applicable document
defect or breach does
not constitute a Material Document Defect or 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
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Material Document Defect or Material Breach (as the case may be)
as to each such
Other Crossed Loan for purposes of the above provisions, and the
Mortgage Loan
Seller shall be obligated to repurchase or replace each such
Other Crossed Loan
in accordance with the provisions above unless, in the case of
such Breach or
Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or
causes
to be delivered to the Trustee an Opinion of Counsel to the
effect that its
repurchase of only those Mortgage Loans as to which a Material
Breach has
actually occurred without regard to the provisions of this
paragraph (the
"Affected Loan(s)") and the operation of the remaining
provisions of this
Section 5(a) will not result in an Adverse REMIC Event with
respect to any
REMIC Pool, or an Adverse Grantor Event with respect to either
Grantor
Trust Pool, under the Pooling and Servicing Agreement; and
(B) both of the following conditions would be satisfied if
the
Mortgage Loan Seller were to repurchase or replace only the
Affected Loans
and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four
calendar
quarters immediately preceding the repurchase or replacement is
not
less than the least of (A) 0.10x below the debt service coverage
ratio
for the Cross-Collateralized Group (including the Affected
Loan(s))
set forth in Appendix B to the Prospectus Supplement, (B) the
debt
service coverage ratio for the Cross-Collateralized Group
(including
the Affected Loan(s)) for the four preceding calendar
quarters
preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value
ratio,
expressed as a whole number (taken to one decimal place), for
the
Cross-Collateralized Group (including the Affected Loan(s)) set
forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group
(including the
Affected Loan(s)) at the time of repurchase or replacement, and
(C)
75%.
The determination of the applicable Master Servicer as to
whether the conditions
set forth above have been satisfied shall be conclusive and
binding in the
absence of manifest error. The applicable Master Servicer will
be entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in
which case the
Mortgage Loan Seller shall) cause to be delivered, to the
applicable Master
Servicer an Appraisal of any or all of the related Mortgaged
Properties for
purposes of determining whether the condition set forth in
clause (ii) above has
been satisfied, in each case at the expense of the Mortgage Loan
Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan
Seller and the
Controlling Class Representative (such approval not to be
unreasonably withheld
in each case).
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
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Loan Seller and the Purchaser agree to forbear from enforcing
any remedies
against the other's Primary Collateral but each is permitted to
exercise
remedies against the Primary Collateral securing its respective
Mortgage Loans,
including with respect to the Trustee, the Primary Collateral
securing the
Affected Loan(s) still held by the Trustee, so long as such
exercise does not
impair the ability of the Mortgage Loan Seller to exercise its
remedies against
its Primary Collateral. If the exercise of remedies by one such
party would
impair the ability of the other such party to exercise its
remedies with respect
to the Primary Collateral securing the Affected Loan or the
Other Crossed Loans,
as the case may be, held by the other such party, then both
parties shall
forbear from exercising such remedies unless and until the
Mortgage Loan
Documents evidencing and securing the relevant Mortgage Loans
can be modified in
a manner that complies with this Agreement to remove the threat
of impairment as
a result of the exercise of remedies. Any reserve or other cash
collateral or
letters of credit securing any of the Cross-Collateralized Loans
shall be
allocated between the Mortgage Loans in accordance with the
Mortgage Loan
Documents, or otherwise on a pro rata basis based upon their
outstanding Stated
Principal Balances. All other terms of the Mortgage Loans shall
remain in full
force and effect, without any modification thereof. The
Borrowers set forth on
Schedule V to the Pooling and Servicing Agreement are intended
third-party
beneficiaries of the provisions set forth in this paragraph and
the preceding
paragraph. The provisions of this paragraph and the preceding
paragraph may not
be modified with respect to any Mortgage Loan without the
related Borrower's
consent.
All costs and expenses incurred by the Trustee and the
applicable
Master Servicer with respect to any Cross-Collateralized Group
pursuant to the
preceding paragraph shall be included in the calculation of
Purchase Price for
the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are
substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as
contemplated by
this Section 5, upon direction by the applicable Master
Servicer, the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage
File and a
certification to the effect that such Replacement Mortgage Loan
satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all
of the
requirements of the definition of "Qualifying Substitute
Mortgage Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan
as contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself
a Replacement
Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or
Material Document Defect, the affected Mortgage Loan will be
required to be
repurchased as contemplated hereby. Monthly Payments due with
respect to each
Replacement Mortgage Loan (if any) after the related date of
substitution, and
Monthly Payments due with respect to each corresponding Deleted
Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to
the related date
of substitution, shall be part of the Trust Fund. Monthly
Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior
to the related
date of substitution, and Monthly Payments due with respect to
each
corresponding Deleted Mortgage Loan (if any) after the related
date of
substitution, shall not be part of the Trust Fund and are to be
remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly
following
receipt.
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
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Mortgage Loan Seller shall amend the Mortgage Loan Schedule to
reflect the
removal of any Deleted Mortgage Loan and, if applicable, the
substitution of the
related Replacement Mortgage Loan(s) and deliver or cause the
delivery of such
amended Mortgage Loan Schedule to the parties to the Pooling and
Servicing
Agreement. Upon any substitution of one or more Replacement
Mortgage Loans for a
Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall
become part of
the Trust Fund and be subject to the terms of this Agreement in
all respects.
(c) Upon the date when the full amount of the Purchase Price
or
Substitution Shortfall Amount (as the case may be) for any
Mortgage Loan
repurchased or replaced by the related Mortgage Loan Seller as
contemplated by
this Section 5 has been deposited in the account designated
therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and
further, if
applicable, upon receipt by the Purchaser (or the Trustee or a
Custodian
appointed thereby) of the Mortgage File for each Replacement
Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together
with any
certifications and/or opinions required pursuant to this Section
5 to be
delivered by the Mortgage Loan Seller, the Purchaser (or the
Trustee) shall (i)
release or cause the release of the Mortgage File and any
Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the
Deleted Mortgage
Loan to the Mortgage Loan Seller or its designee and (ii)
execute and deliver
such instruments of release, transfer and/or assignment, in each
case without
recourse, as shall be provided to it and are reasonably
necessary to vest in the
Mortgage Loan Seller or its designee the ownership of the
Deleted Mortgage Loan,
and the Purchaser (or the applicable Master Servicer on its
behalf) shall notify
the affected Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such
repurchase or
substitution by the Mortgage Loan Seller, each of the applicable
Master Servicer
and the Special Servicer (or other servicing agent for the
Purchaser) shall
deliver to the Mortgage Loan Seller or its designee any portion
of the related
Servicing File, together with any Escrow Payments, Reserve Funds
and Additional
Collateral, held by or on behalf of such Master Servicer or the
Special Servicer
(or other servicing agent for the Purchaser), as the case may
be, with respect
to the Deleted Mortgage Loan, in each case at the expense of the
Mortgage Loan
Seller.
(d) It is understood and agreed that the obligations of the
Mortgage
Loan Seller set forth in this Section 5 to cure a Material
Breach or a Material
Document Defect, or to repurchase or replace the related
Defective Mortgage
Loan(s), constitute the sole remedies available to the
Purchaser, the
Certificateholders or the Trustee on behalf of the
Certificateholders with
respect to a Breach or Document Defect in respect of any
Mortgage Loan.
Notwithstanding the foregoing, to the extent (but only to the
extent)
that (A) the Mortgage Loan Seller represents in the
representation and warranty
set forth in the final sentence of paragraph 23 or the
representation and
warranty set forth in the final sentence of paragraph 29 of
Exhibit C attached
hereto that the Borrower under a Mortgage Loan is required to
pay, or that the
lender is entitled to charge the Borrower for, a cost or expense
described in
such sentence, (B) such representation and warranty is untrue
with respect to
such cost or expense, (C) the Purchaser actually incurs such
cost or such
expense, (D) the Purchaser (or a Person acting on 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
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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, 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;
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(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 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);
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(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
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
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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. S
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