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 Prudential
Mortgage Capital
Funding, LLC ("PMCF"), as seller (in such capacity, together with
its successors
and permitted assigns hereunder, the "Mortgage Loan Seller"), and
Bear Stearns
Commercial Mortgage Securities Inc. ("BSCMSI"), as purchaser (in
such capacity,
together with its successors and permitted assigns hereunder, the
"Purchaser").
RECITALS
PMCF desires to sell, assign, transfer, set over and otherwise
convey
to BSCMSI, without recourse, representation or warranty, other than
as set forth
herein, and BSCMSI desires to purchase, subject to the terms and
conditions set
forth herein, the multifamily and commercial mortgage loans
(collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as
Exhibit A (the
"Mortgage Loan Schedule"), as such schedule may be amended from
time to time
pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the primary assets
of
which will be a segregated pool of multifamily and commercial
mortgage loans
that includes the Mortgage Loans and certain other commercial and
multifamily
mortgage loans (collectively, the "Trust Mortgage Loans").
Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust
Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated
by 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.
PMCF will indemnify the Depositor, the Underwriters, the Initial
Purchasers and certain related parties with respect to the
disclosure regarding
the Mortgage Loans that is contained in the Prospectus, the
Memorandum and
certain other disclosure documents and offering materials relating
to the
Certificates, pursuant to an indemnification agreement, dated as of
the date
hereof (the "Indemnification Agreement"), among PMCF, the
Depositor, the
Underwriters and the Initial Purchasers.
As used herein, "Regulation AB" means Subpart 229.1100 - Asset
Backed
Securities (Regulation AB), 17 C.F.R. 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 $570,539,376, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be
$596,650,895, 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 shall belong and be promptly
remitted to
the Mortgage Loan Seller) together with all documents delivered or
caused to be
delivered hereunder with respect to such Mortgage Loans by the
Mortgage Loan
Seller (including all documents included in the related Mortgage
Files and
Servicing Files and any related Additional Collateral). The
Purchaser shall be
entitled to receive all scheduled payments of principal and
interest due on the
Mortgage Loans after their respective Cut-off Dates, and all other
recoveries of
principal and interest collected thereon after their respective
Cut-off Dates
(other than scheduled payments of principal and interest due on the
Mortgage
Loans on or before their respective Cut-off Dates and collected
after such
respective Cut-off Dates, which shall belong to the Mortgage Loan
Seller). In no
event, however, shall such conveyance and assignment constitute or
be construed
as an assumption by the Purchaser of, in the case of any Mortgage
Loan that is
part of a Mortgage Loan Group, any obligation or liability that is
imposed only
on the initial holder of such Mortgage Loan under the terms of the
related
Mortgage Loan Group Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to
the
Purchaser, as provided herein, the Mortgage Loan Seller shall not
take any
action inconsistent with the Purchaser's ownership of the Mortgage
Loans. Except
for actions that are the express responsibility of another party
hereunder or
under the Pooling and Servicing Agreement, and further except for
actions that
the Mortgage Loan Seller is expressly permitted to complete
subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the
Closing Date,
take all actions required under applicable law to effectuate the
transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is intended by the parties hereto to
constitute a
sale by the Mortgage Loan Seller of all the Mortgage Loan Seller's
right, title
and interest in and to such Mortgage Loans and such other related
rights and
property by the Mortgage Loan Seller to the Purchaser. Furthermore,
it is not
intended that such conveyance be a pledge of security for a loan.
If such
conveyance is determined to be a pledge of security for a loan,
however, then:
(i) this Agreement shall constitute a security agreement under
applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to
the Purchaser a
first priority security interest in all of the Mortgage Loan
Seller's right,
title and interest in and to the Mortgage Loans and all amounts
payable to the
holder(s) of the Mortgage Loans in accordance with the terms
thereof (other than
scheduled payments of interest and principal due and payable on
such Mortgage
Loans on or prior to their respective Cut-Off Dates or, in the case
of a
Replacement Pooled Mortgage Loan, on or prior to the related date
of
substitution); (iii) the assignment by BSCMSI to the Trustee of its
interests in
the Mortgage Loans as contemplated by Section 15 hereof shall be
deemed to be an
assignment of any security interest created hereunder; (iv) the
possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes
with respect
to the Mortgage Loans subject hereto from time to time and such
other items of
property as constitute instruments, money, negotiable documents or
chattel paper
shall be deemed to be "possession by the secured party" or
possession by a
purchaser or person designated by such secured party for the
purpose of
perfecting such security interest under applicable law; and (v)
notifications
to, and acknowledgments, receipts or confirmations from, Persons
holding such
property, shall be
3
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 Custodian appointed thereby (if such
document or
instrument is not otherwise returned to the
4
Trustee or such Custodian) promptly upon the Mortgage Loan Seller's
receipt
thereof), so long as a copy of such document or instrument,
certified by the
Mortgage Loan Seller, a title agent or a recording or filing agent
as being a
copy of the document deposited for recording or filing and
accompanied by an
Officer's Certificate of the Mortgage Loan Seller or a statement
from the title
agent that such document or instrument has been sent to the
appropriate public
recording official for recordation (except that such certification
shall not be
required if the Trustee is responsible for recordation of such
document or
instrument under the Pooling and Servicing Agreement and the
Mortgage Loan
Seller has delivered the original unrecorded document or instrument
to the
Trustee on or before the date that is 45 days following the Closing
Date), has
been delivered to the Trustee on or before the date that is 45 days
following
the Closing Date, the delivery requirements of this subsection
shall be deemed
to have been satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File. In
addition, with
respect to each Mortgage Loan (exclusive of any Mortgage Loan that
constitutes a
Non-Trust-Serviced Pooled Mortgage Loan) under which any Additional
Collateral
is in the form of a Letter of Credit as of the Closing Date, the
Mortgage Loan
Seller shall cause to be prepared, executed and delivered to the
issuer of each
such Letter of Credit such notices, assignments and acknowledgments
as are
required under such Letter of Credit to assign, without recourse,
to the Trustee
the Mortgage Loan Seller's rights as the beneficiary thereof and
drawing party
thereunder. Furthermore, with respect to each Mortgage Loan, if
any, as to which
there exists a secured creditor impaired property insurance policy
or pollution
limited liability environmental impairment policy covering the
related Mortgaged
Property, the Mortgage Loan Seller shall cause such policy, within
a reasonable
period following the Closing Date, to inure to the benefit of the
Trustee for
the benefit of the Certificateholders (if and to the extent that it
does not by
its terms automatically inure to the holder of such Mortgage Loan).
For purposes
of this paragraph, the relevant definition of "Mortgage File" shall
be the
definition of such term set forth in the Pooling and Servicing
Agreement as in
full force and effect on the Closing Date.
(d) If the Mortgage Loan Seller receives written notice that any
assignment or other instrument of transfer with respect to the
Mortgage Loans is
lost or returned unrecorded or unfiled, as the case may be, because
of a defect
therein, the Mortgage Loan Seller shall prepare or cause the
preparation of a
substitute therefor or cure such defect, as the case may be. The
Mortgage Loan
Seller shall be responsible for paying, pursuant to a separate
agreement and not
pursuant to this Agreement, an upfront fee to the Trustee in
connection with
recording and/or filing any and all assignments and other
instruments of
transfer with respect to the Mortgage Loans that are required to be
recorded or
filed, as the case may be, under the Pooling and Servicing
Agreement; provided
that the Mortgage Loan Seller shall not be responsible for actually
recording or
filing any such assignments or other instruments of transfer or for
costs and
expenses that the related Borrowers have agreed to pay.
(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
5
Agreement and except to the extent that any of the following items
relate to any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage
Loan): (i)
originals or copies of all financial statements, appraisals,
environmental/engineering reports, transaction screens, seismic
assessment
reports, leases, rent rolls, insurance policies and certificates,
major space
leases, legal opinions and tenant estoppels and any other relevant
documents
relating to the origination and servicing of any Mortgage Loan that
are
reasonably necessary for the ongoing administration and/or
servicing of the
applicable Mortgage Loan in the possession or under the control of
the Mortgage
Loan Seller that relate to the Mortgage Loans transferred by it to
the Purchaser
and, to the extent that any original documents are not required to
be a part of
a Mortgage File for any such Mortgage Loan, originals or copies of
all
documents, certificates and opinions in the possession or under the
control of
the Mortgage Loan Seller that were delivered by or on behalf of the
related
Borrowers in connection with the origination of such Mortgage Loans
(provided
that the Mortgage Loan Seller shall not be required to deliver any
attorney-client privileged communication, draft documents or any
documents or
materials prepared by it or its Affiliates for internal uses,
including without
limitation, credit committee briefs or memoranda and other internal
approval
documents); and (ii) all unapplied Reserve Funds and Escrow
Payments in the
possession or under the control of the Mortgage Loan Seller that
relate to the
Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller shall report
its transfer
of the Mortgage Loans to the Purchaser, as provided herein, as a
sale of the
Mortgage Loans to the Purchaser in exchange for the consideration
specified in
Section 1 hereof. In connection with the foregoing, the Mortgage
Loan Seller
shall cause all of its records to reflect such transfer as a sale
(as opposed to
a secured loan) and to reflect that the Mortgage Loans are no
longer property of
the Mortgage Loan Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling
and Servicing
Agreement. The Mortgage Loan Seller shall, within 15 days of its
discovery or
receipt of notice of any error on the Mortgage Loan Schedule, amend
such
Mortgage Loan Schedule and deliver to the Purchaser or the Trustee,
as the case
may be, an amended Mortgage Loan Schedule; provided that this
sentence shall not
be construed to relieve the Mortgage Loan Seller of any liability
for any
related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with
any examination
of the Mortgage Files for, and any other documents and records
relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the
Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted
or has failed
to conduct any partial or complete examination of any of the
Mortgage Files for,
and/or any of such other documents and records relating to, the
Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law 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.
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SECTION 4. Representations, Warranties and Covenants of the
Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(and, in connection with any replacement of a Defective Mortgage
Loan (as
defined in Section 4(d) hereof) with one or more Replacement
Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a)
hereof, as of
the related date of substitution), to and for the benefit of the
Purchaser, each
of the representations and warranties set forth in Exhibit B-1. The
Purchaser
hereby makes, as of the Closing Date, to and for the benefit of the
Mortgage
Loan Seller, each of the representations and warranties set forth
in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing Date
(or
as of such other date specifically provided in the particular
representation or
warranty), to and for the benefit of the Purchaser, each of the
representations
and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as of
the
Closing Date, to and for the benefit of BSCMSI only, that the
Mortgage Loan
Seller has not dealt with any broker, investment banker, agent or
other person
(other than the Depositor, the Underwriters and the Initial
Purchasers) who may
be entitled to any commission or compensation in connection with
the sale to the
Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and warrants that,
with
respect to the Mortgage Loans and the Mortgage Loan Seller's role
as
"originator" (or the role of any third party as "originator" of any
Mortgage
Loan for which the Mortgage Loan Seller was not the originator) and
"sponsor" in
connection with the issuance of the Registered Certificates, the
information
regarding the Mortgage Loans, the related Borrowers, the related
Mortgaged
Properties and/or the Mortgage Loan Seller contained in the
Prospectus
Supplement complies in all material respects with the applicable
disclosure
requirements of Regulation AB.
(e) For so long as the Trust is subject to the reporting
requirements
of the Exchange Act, the Mortgage Loan Seller hereby agrees to
provide the
Purchaser (or with respect to any Serviced Non-Pooled Pari Passu
Companion Loan
that is deposited into an Other Securitization, the depositor in
such Other
Securitization) and the Certificate Administrator with any
Additional Form 10-D
Disclosure and any Additional Form 10-K Disclosure opposite which
"Pooled
Mortgage Loan Seller" is set forth on Schedule IX and Schedule X to
the Pooling
and Servicing Agreement within the time periods and in accordance
with the
provisions set forth in the Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be deemed
to
make to and for the benefit of the Purchaser, as of the date of
substitution,
with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan")
that is substituted for a Defective Mortgage Loan, by the Mortgage
Loan Seller
pursuant to Section 5(a) of this Agreement, each of the
representations and
warranties set forth in Exhibit C to this Agreement. From and after
the date of
substitution, each Replacement Mortgage Loan, if any, shall be
deemed to
constitute a "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.
7
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall
survive
delivery of the respective Mortgage Files to the Purchaser or its
designee and
shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the
Mortgage Loan
Seller of notice, of any Material Breach or Material Document
Defect with
respect to any Mortgage Loan (or, if such Material Breach or
Material Document
Defect, as the case may be, related to whether such Mortgage Loan
is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan,
as of the
related date of substitution), was a Qualified Mortgage, and
provided that the
Mortgage Loan Seller discovered or received prompt written notice
thereof,
within 90 days after any earlier discovery by the Mortgage Loan
Seller or any
party to the Pooling and Servicing Agreement of such Material
Breach or Material
Document Defect, as the case may be) (such 90-day period, in any
case, the
"Initial Resolution Period"), correct or cure such Material
Document Defect or
Material Breach, as the case may be, in all material respects, or
repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided
that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that
such Material
Document Defect or Material Breach, as the case may be, does not
relate to
whether the affected Mortgage Loan is or, as of the Closing Date
(or, in the
case of a Replacement Mortgage Loan, as of the related date of
substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect
or Material
Breach, as the case may be, is capable of being cured but not
within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan
Seller has
commenced and is diligently proceeding with the cure of such
Material Document
Defect or Material Breach, as the case may be, during the
applicable Initial
Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates that such
Material Document Defect or Material Breach, as the case may be,
will be cured
within an additional 90-day period (such additional 90-day period,
the
"Resolution Extension Period"), then the Mortgage Loan Seller shall
have an
additional period equal to any such applicable Resolution Extension
Period to
complete such correction or cure (or, upon failure to complete such
correction
or cure, to repurchase the affected Mortgage Loan); and provided,
further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated
above (but,
in any event, no later than such repurchase would have to have been
completed),
such Mortgage Loan Seller shall be permitted, during the
three-month period
following the Startup Day for the REMIC Pool that holds the
affected Mortgage
Loan (or during the two-year period following such Startup Day if
the affected
Mortgage Loan is a "defective obligation" within the meaning of
Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying
Substitute
Mortgage Loans and to pay a cash amount equal to the applicable
Substitution
Shortfall Amount. The parties hereto agree that delivery by the
Trustee (or a
Custodian on its behalf) of a certification or schedule of
exceptions to the
Mortgage Loan Seller pursuant to the Pooling and Servicing
Agreement shall not
in and of itself constitute delivery of notice of any Material
Document Defect
or knowledge of the Mortgage Loan Seller of any Material Document
Defect
therein. If any Mortgage Loan is to be 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
8
replacement of a Mortgage Loan shall be on a whole loan, servicing
released
basis. Notwithstanding this subsection, the absence from the
Mortgage File, (i)
on the Closing Date of the Mortgage Note (or a lost note affidavit
and indemnity
with a copy of the Mortgage Note) and (ii) by the first anniversary
of the
Closing Date of originals or copies of the following documents
(without the
presence of any factor that reasonably mitigates such absence,
non-conformity or
irregularity) or of any Specially Designated Mortgage Loan Document
shall be
conclusively presumed to be a Material Document Defect and shall
obligate the
Mortgage Loan Seller to cure such Material Document Defect, or,
failing that,
repurchase the related Mortgage Loan or REO Mortgage Loan, all in
accordance
with the procedures set forth herein: (a) the Mortgage and any
separate
Assignment of Leases as described by clauses (ii) and (iii) of the
definition of
"Mortgage File"; (b) the title insurance policy as described in
clause (viii) of
the definition of "Mortgage File" (or, if the policy has not yet
been issued, an
original or copy of a written commitment "marked-up" at the closing
of such
Mortgage Loan, interim binder or the pro forma title insurance
policy, in each
case evidencing a binding commitment to issue such policy); or (c)
the
assignment of Mortgage (and any separate Assignment of Leases) as
described by
clause (iv) of the definition of "Mortgage File". For purposes of
this
paragraph, the relevant definition of "Mortgage File" shall be the
definition of
such term set forth in the Pooling and Servicing Agreement as in
full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any
Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced
as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect
or breach does
not constitute a Material Document Defect or Material Breach, as
the case may
be, as to the other Mortgage Loan(s) that are a part of such
Cross-Collateralized Group (the "Other Crossed Loans") (without
regard to this
paragraph), then the applicable Document Defect or Breach (as the
case may be)
shall be deemed to constitute a Material Document Defect or
Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of
the above
provisions, and the Mortgage Loan Seller shall be obligated to
repurchase or
replace each such Other Crossed Loan in accordance with the
provisions above
unless, in the case of such Breach or Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or causes
to be delivered to the Trustee an Opinion of Counsel to the effect
that its
repurchase of only those Mortgage Loans as to which a Material
Breach has
actually occurred without regard to the provisions of this
paragraph (the
"Affected Loan(s)") and the operation of the remaining provisions
of this
Section 5(a) will not result in an Adverse REMIC Event with respect
to any
REMIC Pool, or an Adverse Grantor Event with respect to either
Grantor
Trust Pool, under the Pooling and Servicing Agreement; and
(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:
9
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x below the debt service coverage
ratio
for the Cross-Collateralized Group (including the Affected Loan(s))
set forth in Appendix B to the Prospectus Supplement, (B) the debt
service coverage ratio for the Cross-Collateralized Group
(including
the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set
forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including
the
Affected Loan(s)) at the time of repurchase or replacement, and (C)
75%.
The determination of the applicable Master Servicer as to whether
the conditions
set forth above have been satisfied shall be conclusive and binding
in the
absence of manifest error. The applicable Master Servicer will be
entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in
which case the
Mortgage Loan Seller shall) cause to be delivered, to the
applicable Master
Servicer an Appraisal of any or all of the related Mortgaged
Properties for
purposes of determining whether the condition set forth in clause
(ii) above has
been satisfied, in each case at the expense of the Mortgage Loan
Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan
Seller and the
Controlling Class Representative (such approval not to be
unreasonably withheld
in each case).
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described
in the
preceding paragraph are satisfied, such that the Trust Fund will
continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the
Purchaser agree
to forbear from enforcing any remedies against the other's Primary
Collateral
but each is permitted to exercise remedies against the Primary
Collateral
securing its respective Mortgage Loans, including with respect to
the Trustee,
the Primary Collateral securing the Affected Loan(s) still held by
the Trustee,
so long as such exercise does not impair the ability of the
Mortgage Loan Seller
to exercise its remedies against its Primary Collateral. If the
exercise of
remedies by one such party would impair the ability of the other
such party to
exercise its remedies with respect to the Primary Collateral
securing the
Affected Loan or the Other Crossed Loans, as the case may be, held
by the other
such party, then both parties shall forbear from exercising such
remedies unless
and until the Mortgage Loan Documents evidencing and securing the
relevant
Mortgage Loans can be modified in a manner that complies with this
Agreement to
remove the threat of impairment as a result of the exercise of
remedies. Any
reserve or other cash collateral or letters of credit securing any
of the
Cross-Collateralized Loans shall be allocated between the Mortgage
Loans in
accordance with the 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
10
paragraph and the preceding paragraph. The provisions of this
paragraph and the
preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Borrower's consent.
All costs and expenses incurred by the Trustee and the applicable
Master Servicer with respect to any Cross-Collateralized Group
pursuant to the
preceding paragraph shall be included in the calculation of
Purchase Price for
the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as
contemplated by
this Section 5, upon direction by the applicable Master Servicer,
the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage File
and a
certification to the effect that such Replacement Mortgage Loan
satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all of
the
requirements of the definition of "Qualifying Substitute Mortgage
Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself a
Replacement
Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or
Material Document Defect, the affected Mortgage Loan will be
required to be
repurchased as contemplated hereby. Monthly Payments due with
respect to each
Replacement Mortgage Loan (if any) after the related date of
substitution, and
Monthly Payments due with respect to each corresponding Deleted
Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to the
related date
of substitution, shall be part of the Trust Fund. Monthly Payments
due with
respect to each Replacement Mortgage Loan (if any) on or prior to
the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date
of
substitution, shall not be part of the Trust Fund and are to be
remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly
following
receipt.
If any Mortgage Loan is to be repurchased or replaced by the
Mortgage
Loan Seller as contemplated by this Section 5, upon direction by
the applicable
Master Servicer, the Mortgage Loan Seller shall amend the Mortgage
Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the
substitution of the related Replacement Mortgage Loan(s) and
deliver or cause
the delivery of such amended Mortgage Loan Schedule to the parties
to the
Pooling and Servicing Agreement. Upon any substitution of one or
more
Replacement Mortgage Loans for a Deleted Mortgage Loan, such
Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject
to the terms
of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage
Loan
repurchased or replaced by the related Mortgage Loan Seller as
contemplated by
this Section 5 has been deposited in the account designated
therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and
further, if
applicable, upon receipt by the Purchaser (or the Trustee or a
Custodian
appointed 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
11
behalf of the Purchaser (or the Trustee) for the Deleted Mortgage
Loan to the
Mortgage Loan Seller or its designee and (ii) execute and deliver
such
instruments of release, transfer and/or assignment, in each case
without
recourse, as shall be provided to it and are reasonably necessary
to vest in the
Mortgage Loan Seller or its designee the ownership of the Deleted
Mortgage Loan,
and the Purchaser (or the applicable Master Servicer on its behalf)
shall notify
the affected Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such
repurchase or
substitution by the Mortgage Loan Seller, each of the applicable
Master Servicer
and the Special Servicer (or other servicing agent for the
Purchaser) shall
deliver to the Mortgage Loan Seller or its designee any portion of
the related
Servicing File, together with any Escrow Payments, Reserve Funds
and Additional
Collateral, held by or on behalf of such Master Servicer or the
Special Servicer
(or other servicing agent for the Purchaser), as the case may be,
with respect
to the Deleted Mortgage Loan, in each case at the expense of the
Mortgage Loan
Seller.
(d) It is understood and agreed that the obligations of the
Mortgage
Loan Seller set forth in this Section 5 to cure a Material Breach
or a Material
Document Defect, or to repurchase or replace the related Defective
Mortgage
Loan(s), constitute the sole remedies available to the Purchaser,
the
Certificateholders or the Trustee on behalf of the
Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage
Loan.
Notwithstanding the foregoing, to the extent (but only to the
extent)
that (A) the Mortgage Loan Seller represents in the representation
and warranty
set forth in the final sentence of paragraph 23 or the
representation and
warranty set forth in the final sentence of paragraph 29 of Exhibit
C attached
hereto that the Borrower under a Mortgage Loan is required to pay,
or that the
lender is entitled to charge the Borrower for, a cost or expense
described in
such sentence, (B) such representation and warranty is untrue with
respect to
such cost or expense, (C) the Purchaser actually incurs such cost
or such
expense, (D) the Purchaser (or a Person acting on behalf of the
Purchaser)
exercises efforts consistent with the Servicing Standard and the
related
Mortgage Loan Documents to collect such cost or expense from the
Borrower and
(E) the Borrower does not pay such cost or expense at or before the
conclusion
of the efforts described in the preceding clause (D), then the
Mortgage Loan
Seller hereby covenants and agrees (it being the intention of the
parties that
all, and not less than all, of the conditions described in the
preceding clauses
(A), (B), (C), (D) and (E) shall be precedent to such covenant and
agreement) to
pay such cost or expense within 90 days following a direction by
the Purchaser
(or a Person acting on behalf of the Purchaser) to do so. Also
notwithstanding
the foregoing, the remedy described in the immediately preceding
sentence shall
constitute the sole remedy available to the Purchaser, the
Certificateholders or
the Trustee on behalf of the Certificateholders with respect to any
breach of
any representation described in clause (A) of the immediately
preceding
sentence, the Mortgage Loan Seller shall not otherwise have any
obligation to
cure such a breach and the Mortgage Loan Seller shall not have any
obligation to
repurchase or replace the affected Mortgage Loan.
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.
12
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be true
and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
reasonably
acceptable to the Purchaser and, in the case of the Pooling and
Servicing
Agreement (insofar as such Agreement affects the obligations of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller, shall
be duly
executed and delivered by all signatories as required pursuant to
the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Purchaser or its designee, all documents, funds and other
assets
required to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) The result of any examination of the Mortgage Files for, and
any
other documents and records relating to, the Mortgage Loans
performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with
in all material respects, and the Mortgage Loan Seller shall have
the
ability to comply with all terms and conditions and perform all
duties and
obligations required to be complied with or performed by it after
the
Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase
price
for the Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees to use their commercially reasonable
best
efforts to perform their respective obligations hereunder in a
manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 7. Closing Documents. The Purchaser or its designee shall
have
received all of the following Closing Documents, in such forms as
are agreed
upon and 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;
13
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of
the
Mortgage Loan Seller, in his or her individual capacity, and dated
the
Closing Date, and upon which the Interested Parties may rely,
attaching
thereto as exhibits (A) the resolutions of the board of directors
of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's
entering into
the transactions contemplated by this Agreement and the
Indemnification
Agreement, and (B) the organizational documents of the Mortgage
Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage
Loan
Seller issued by the Secretary of State of the State of Delaware
not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v) A Certificate of the Mortgage Loan Seller substantially in the
form of Exhibit D-2 hereto, executed by an executive officer of the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated
the
Closing Date, and upon which the Interested Parties may rely;
(vi) The written opinion of in-house counsel for the Mortgage Loan
Seller, dated the Closing Date and addressed to the Interested
Parties and
the Trustee, which opinion shall be substantially in the form of
Exhibit
D-3A hereto (with such additions, deletions or modifications as may
be
required by either Rating Agency);
(vii) A written opinion of Cadwalader, Wickersham & Taft LLP,
special
counsel for the Mortgage Loan Seller, dated the Closing Date and
addressed
to the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3B hereto (with such
additions,
deletions or modifications as may be required by either Rating
Agency);
(viii) A letter from Cadwalader, Wickersham & Taft 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
14
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
Four Gateway Center, 8th Floor, 100 Mulberry Street, Newark, New
Jersey 07102,
Attention: Sean G. Beggan, 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,
15
notwithstanding any restrictive or qualified endorsement or
assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or is
held to be void or unenforceable shall be ineffective to the extent
of such
prohibition or unenforceability without invalidating the remaining
provisions
hereof. Any part, provision, representation, warranty or covenant
of this
Agreement that is prohibited or is held to be void or unenforceable
in any
particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or
unenforceability in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction; Waiver of Trial
by
Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED,
MADE AND TO
BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER
HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH
RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES
THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST
POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A
FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY
LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL
RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF
THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and
take such
further actions as any other party hereto may, from time to time,
reasonably
request in order to effectuate the purposes and to carry out the
terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of
the
Mortgage Loan Seller under this Agreement shall not be assigned by
the Mortgage
Loan Seller 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
16
Mortgage Loans to the Trust as contemplated by the recitals hereto,
BSCMSI is
expressly authorized to assign its rights under this Agreement, in
whole or in
part, to the Trustee for the benefit of the registered holders and
beneficial
owners of the Certificates. To the extent of any such assignment,
the Trustee,
for the benefit of the registered holders and beneficial owners of
the
Certificates, shall be the Purchaser hereunder. Subject to the
foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable
by the
Mortgage Loan Seller and the Purchaser, and their respective
successors and
permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall provide the
Purchaser with such information about itself, the Mortgage Loans
and the
underwriting and servicing procedures applicable to the Mortgage
Loans as is (i)
customary in commercial mortgage loan securitization transactions,
(ii) required
by a Rating Agency or a governmental agency or body or (iii)
reasonably
requested by the Purchaser for use in a public or private
disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that
certain groups
of Mortgage Loans are, in the case of each such particular group of
Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted
and cross-collateralized, if identified as such on the Mortgage
Loan Schedule.
For purposes of reference, the Mortgaged Property that relates or
corresponds to
any of the Mortgage Loans referred to in this Section 17 shall be
the property
identified in the Mortgage Loan Schedule as corresponding thereto.
The
provisions of this Agreement, including, without limitation, each
of the
representations and warranties set forth in Exhibit C hereto and
each of the
capitalized terms used herein but defined in the Pooling and
Servicing
Agreement, shall be interpreted in a manner consistent with this
Section 17. In
addition, if there exists with respect to any Cross-Collateralized
Group only
one original of any document referred to in the definition of
"Mortgage File" in
the Pooling and Servicing Agreement and covering all the Mortgage
Loans in such
Cross-Collateralized Group, the inclusion of the original of such
document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such
original in the
Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire
agreement and
understanding of the parties with respect to the matters addressed
herein, and
this Agreement supersedes any prior agreements and/or
understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
17
EXECUTION VERSION
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused this Agreement to be duly executed by their respective
officers as of the
day and year first above written.
PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC
By:
-------------------------------------
Name: Emanuel Chrysoulakis
Title: Vice President
BEAR STEARNS COMMERCIAL MORTGAGE
SECURITIES INC.
By:
-------------------------------------
Name: Richard A. Ruffer Jr.
Title: Vice President
PMCF MLPA
EXHIBIT A
SCHEDULE OF PMCF POOLED MORTGAGE LOANS
Ex. A-1
ID
CMSA LOAN NO.
CMSA PROPERTY NO.
SELLER LOAN NUMBER
PROPERTY NAME
LOAN GROUP
-----
-------------
-----------------
------------------
--------------------------------------
----------
1
1
1-001
6106890
South Bay Galleria
1
5
5
6106911
Tysons Office and Data Center
1
5-a
5-001
6106911a
Polk & Annex
5-b
5-002
6106911b
Roosevelt Building
5-c
5-003
6106911c
Buchanan Building
5-d
5-004
6106911d
Tyler Building
9
9
9-001
6106863
1657 Broadway
1
11
11
11-001
6106835
Piedmont Mall
1
24
24
24-001
6106847
Concord Place
2
26
26
26-001
6106853
Ontario City Centre
1
29
29
29-001
6106930
Legends at KU
2
36
36
36-001
6106785
Holiday Inn Express - Elk Grove
1
40
40
6106841
Spanish Crossroads and Grand Plaza
1
40-a
40-001
6106841a
Grand Plaza
40-b
40-002
6106841b
Spanish Crossroads
43
43
43-001
6106848
Buffalo Creek Apartments
2
45
45
45-001
6106206
Southside Square
1
50
50
50-001
6106859
Sharene Lane Apartments
2
54
54
54-001
6106586
Clear Creek Business Center
1
56
56
56-001
6106915
The Links
2
58
58
58-001
6106746
Winco Anchorage
1
59
59
59-001
6106888
2401 Locust Street Telecommunications
1
60
60
60-001
6106876
Danville Park Apartments
2
70
70
70-001
6106117
Twin Oaks Shopping Center
1
72
72
72-001
6106866
Two Centre Square
1
80
80
80-001
6106451
The Tower
1
87
87
87-001
6106694
Marvin Gardens
2
92
92
92-001
6106811
Marble Park
1
101
101
101-001
6106861
Coast Center
1
102
102
102-001
6106891
Menlo Business Park
1
103
103
103-001
6106408
Venlo Place Apartments
1
105
105
105-001
6106810
Marble Park III
1
114
114
114-001
6106729
Pointer Ridge Office Building
1
115
115
115-001
6106862
Hualapai Way Retail
1
127
127
127-001
6105675
Conquistador
2
134
134
134-001
6106802
Arlington Plaza
1
137
137
6106774
Baltimore Portfolio
2
137-a
137-001
6106774a
Saint Paul Commons
137-b
137-002
6106774b
The Wentworth
137-c
137-003
6106774c
West Monument
139
139
139-001
6106786
Glendale Industrial
1
146
146
146-001
6106903
Manchester Plaza
1
149
149
149-001
6106836
Hills of Palos Verdes
2
150
150
150-001
6106668
Hampton Inn Greensboro
1
155
155
155-001
6106838
Coronado Villas Apartments
2
157
157
157-001
6106789
CVS Pharmacy
1
171
171
6106849
Selway Industrial
1
171-a
171-001
6106849a
Union
171-b
171-002
6106849b
Auburn
177
177
177-001
6106875
Allied Drive Warehouse
1
178
178
178-001
6106819
Englewood Apartments
2
220
220
220-001
6106860
Cheyenne Office
1
222
222
222-001
6106775
Main Crossing Shopping Center
1
ID
ADDRESS
CITY
STATE
ZIP CODE
ORIGINAL BALANCE
-----
-----------------------------------------------------------
-------------
-------
--------
----------------
1
1801 to 1835 and 1515 to 1603 Hawthorne Boulevard
Redondo Beach
CA
90278
100,000,000
5
Various
McLean
VA
22102
67,000,000
5-a
1764 Old Meadow Lane
McLean
VA
22102
34,600,000
5-b
1755 Old Meadow Road
McLean
VA
22102
16,020,000
5-c
1768 Old Meadow Lane
McLean
VA
22102
9,910,000
5-d
1761 Old Meadow Road
McLean
VA
22102
6,470,000
9
1657 Broadway
New York
NY
10019
53,000,000
11
325 Piedmont Drive
Danville
VA
24540
35,000,000
24
401 West Lake Street
Northlake
IL
60164
20,000,000
26
50 East Ontario Street
Chicago
IL
60611
18,800,000
29
4101 West 24th Place
Lawrence
KS
66047
16,500,000
36
9175 W. Stockton Boulevard
Elk Grove
CA
95758
13,275,000
40
Various
Amarillo
TX
Various
12,850,000
40-a
3510 E. Interstate 40
Amarillo
TX
79103
8,330,000
40-b
3415 Bell Street
Amarillo
TX
79109
4,520,000
43
720 Buffalo Run Drive
Indianapolis
IN
46227
12,400,000
45
1030 South Main Street
Kernersville
NC
27284
11,900,000
50
114, 130 and 140 Sharene Lane
Walnut Creek
CA
94596
11,000,000
54
6800 North Broadway
Denver
CO
80221
10,750,000
56
2805 Par Drive
Raleigh
NC
27603
10,500,000
58
4831 Old Seward Highway
Anchorage
AK
99503
10,500,000
59
2401 Locust Street
Philadelphia
PA
19103
10,400,000
60
218 Valley Creek Lane
Danville
CA
94526
10,300,000
70
2715 Eastern Boulevard
Montgomery
AL
36117
9,750,000
72
625 S. Gay St., 500 W. Clinch Avenue
Knoxville
TN
37902
9,625,000
80
402 E. Yakima Ave
Yakima
WA
98901
9,000,000
87
2301 Third Avenue
Seattle
WA
98121
8,150,000
92
2539,2541,2545,2550,2560,2570 West 237th Street
Torrance
CA
90505
8,000,000
101
520-522 E. Lake Mead
Henderson
NV
89015
7,400,000
102
2360,2362,2370,2372,2380 Qume Drive
San Jose
CA
95131
7,375,000
103
15345 Venlo Place
Big Rapids
MI
49307
7,350,000
105
2531 and 2535 West 237th Street
Torrance
CA
90505
7,250,000
114
1525 Pointer Ridge Place
Bowie
MD
20716
6,620,000
115
4280 South Hualapai Way
Las Vegas
NV
89147
6,510,000
127
7575 Bellaire Boulevard
Houston
TX
77036
6,000,000
134
1380 - 1400 South Arlington
Akron
OH
44306
5,500,000
137
Various
Baltimore
MD
Various
5,225,000
137-a
1121-23, 1125, 1127, 1203, 1205, 1209, 1230 St. Paul Street
Baltimore
MD
21202
2,465,000
137-b
311 Cathedral Street
Baltimore
MD
21201
1,520,000
137-c
103 West Monument Street
Baltimore
MD
21201
1,240,000
139
2205 Glendale Avenue
Sparks
NV
89431
5,100,000
146
5555 Manchester Avenue
Los Angeles
CA
90045
4,900,000
149
930 West Interstate 30
Garland
TX
75043
4,700,000
150
903 Knox Road
McLeansville
NC
27301
4,700,000
155
113 Coronado Drive
Denton
TX
76209
4,400,000
157
6800 Collier Boulevard
Naples
FL
34114
4,325,000
171
Various
Various
Various
Various
3,610,000
171-a
29250 Union City Boulevard
Union City
CA
94587
2,380,073
171-b
4108 B Place NW
Auburn
WA
98001
1,229,927
177
500 Allied Drive
Nashville
TN
37211
3,420,000
178
5432 N.W. Waukomis Drive
Kansas City
MO
64151
3,400,000
220
9930 West Cheyenne Avenue
Las Vegas
NV
89129
2,220,000
222
2445 N. Main St
Paris
TX
75460
2,167,500
P&I MONTHLY DEBT
ID
CUT-OFF DATE BALANCE
SERVICE
IO MONTHLY DEBT SERVICE
MORTGAGE RATE
INTEREST ACCRUAL BASIS
-----
--------------------
----------------
-----------------------
-------------
----------------------
1
100,000,000
575,656
NAP
5.62500%
Actual/360
5
67,000,000
NAP
332,011
5.86500%
Actual/360
5-a
34,600,000
5-b
16,020,000
5-c
9,910,000
5-d
6,470,000
9
53,000,000
NAP
282,562
6.31000%
Actual/360
11
34,900,364
209,370
NAP
5.97900%
Actual/360
24
20,000,000
124,709
NAP
6.37000%
Actual/360
26
18,800,000
NAP
94,194
5.93000%
Actual/360
29
16,500,000
NAP
81,624
5.85500%
Actual/360
36
13,238,941
85,693
NAP
6.02000%
Actual/360
40
12,850,000
76,547
64,491
5.94000%
Actual/360
40-a
8,330,000
40-b
4,520,000
43
12,400,000
72,048
59,823
5.71000%
Actual/360
45
11,900,000
67,642
55,400
5.51000%
Actual/360
50
11,000,000
66,021
55,857
6.01000%
Actual/360
54
10,750,000
65,353
55,677
6.13000%
Actual/360
56
10,500,000
64,105
54,737
6.17000%
Actual/360
58
10,471,665
64,514
NAP
6.23000%
Actual/360
59
10,400,000
62,353
52,722
6.00000%
Actual/360
60
10,300,000
61,820
52,302
6.01000%
Actual/360
70
9,750,000
59,906
51,322
6.23000%
Actual/360
72
9,625,000
NAP
49,566
6.09500%
Actual/360
80
8,906,411
51,951
NAP
5.65000%
Actual/360
87
8,150,000
49,652
42,349
6.15000%
Actual/360
92
8,000,000
47,451
39,880
5.90000%
Actual/360
101
7,392,563
44,129
NAP
5.95000%
Actual/360
102
7,375,000
43,933
37,013
5.94000%
Actual/360
103
7,329,607
44,541
NAP
6
