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 Wells Fargo
Bank, National
Association ("Wells Fargo Bank"), 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
Wells Fargo Bank 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.
Wells Fargo Bank 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 Wells Fargo Bank,
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 $731,282,770, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be
$766,331,384, 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
2
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 deemed to be notifications to, or
3
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
4
as a copy of such document or instrument, certified by the Mortgage
Loan Seller,
a title agent or a recording or filing agent as being a copy of the
document
deposited for recording or filing and accompanied by an Officer's
Certificate of
the Mortgage Loan Seller or a statement from the title agent that
such document
or instrument has been sent to the appropriate public recording
official for
recordation (except that such certification shall not be required
if the Trustee
is responsible for recordation of such document or instrument under
the Pooling
and Servicing Agreement and the Mortgage Loan Seller has delivered
the original
unrecorded document or instrument to the Trustee on or before the
date that is
45 days following the Closing Date), has been delivered to the
Trustee on or
before the date that is 45 days following the Closing Date, the
delivery
requirements of this subsection shall be deemed to have been
satisfied as to
such missing item, and such missing item shall be deemed to have
been included
in the related Mortgage File. In addition, with respect to each
Mortgage Loan
(exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled
Mortgage Loan) under which any Additional Collateral is in the form
of a Letter
of Credit as of the Closing Date, the Mortgage Loan Seller shall
cause to be
prepared, executed and delivered to the issuer of each such Letter
of Credit
such notices, assignments and acknowledgments as are required under
such Letter
of Credit to assign, without recourse, to the Trustee the Mortgage
Loan Seller's
rights as the beneficiary thereof and drawing party thereunder.
Furthermore,
with respect to each Mortgage Loan, if any, as to which there
exists a secured
creditor impaired property insurance policy or pollution limited
liability
environmental impairment policy covering the related Mortgaged
Property, the
Mortgage Loan Seller shall cause such policy, within a reasonable
period
following the Closing Date, to inure to the benefit of the Trustee
for the
benefit of the Certificateholders (if and to the extent that it
does not by its
terms automatically inure to the holder of such Mortgage Loan). For
purposes of
this paragraph, the relevant definition of "Mortgage File" shall be
the
definition of such term set forth in the Pooling and Servicing
Agreement as in
full force and effect on the Closing Date.
(d) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or in the case of a
Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03 of the
Pooling and
Servicing Agreement, after the related date of substitution) and
(ii) the date
on which all recording information necessary to complete the
subject document is
received by the Mortgage Loan Seller, the Mortgage Loan Seller
shall complete
(to the extent necessary), and shall submit for recording or
filing, as the case
may be, including via electronic means, if appropriate, in or with
the
appropriate office for real property records or UCC Financing
Statements, as
applicable, each assignment of Mortgage and assignment of
Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment
of Leases that
has been recorded in the name of MERS or its designee) in favor of
the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in
the Pooling
and Servicing Agreement and each assignment of UCC Financing
Statement (except
with respect to any UCC Financing Statement that has been recorded
in the name
of MERS or its designee) in favor of the Trustee referred to in
clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing
Agreement.
Each such assignment shall reflect that it should be returned by
the public
recording office to the Trustee 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
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 Loan Seller receives written notice that any
assignment or other
5
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 all reasonable out-of-pocket costs and expenses
associated
with recording and/or filing any and all assignments and other
instruments of
transfer with respect to the Mortgage Loans that are required to be
recorded or
filed, as the case may be, under the Pooling and Servicing
Agreement; provided
that the Mortgage Loan Seller shall not be responsible for actually
recording or
filing any such assignments or other instruments of transfer or for
costs and
expenses that the related Borrowers have agreed to pay.
(e) In connection with the Mortgage Loan Seller's assignment
pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense,
shall deliver
to and deposit with, or cause to be delivered to and deposited
with, the
applicable Master Servicer, on or before the date that is 45 days
after the
Closing Date, in the case of the items in clause (i) below, and 20
days after
the Closing Date, in the case of the items in clause (ii) below,
the following
items (except to the extent that any of the following items are to
be retained
by a Primary Servicer or Sub-Servicer that will continue to act on
behalf of the
applicable Master Servicer as contemplated by the Pooling and
Servicing
Agreement and a Primary Servicing Agreement or Sub-Servicing
Agreement and
except to the extent that any of the following items relate to any
Mortgage Loan
that constitutes a Non-Trust-Serviced Pooled Mortgage Loan): (i)
originals or
copies of all financial statements, appraisals,
environmental/engineering
reports, transaction screens, seismic assessment reports, leases,
rent rolls,
insurance policies and certificates, major space leases, legal
opinions and
tenant estoppels and any other relevant documents relating to the
origination
and servicing of any Mortgage Loan that are reasonably necessary
for the ongoing
administration 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
6
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.
(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
7
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 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
8
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 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
9
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 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
10
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 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
11
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 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
12
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;
(vii) the Mortgage Loan Seller shall have received the purchase
price
for the Mortgage Loans, as contemplated by Section 1; and
13
(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 Comptroller of the Currency of the United
States 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 Sidley Austin Brown & 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);
14
(viii) A letter from Andrews Kurth 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 225
West Wacker Drive, Suite 2550, Chicago, Illinois 60606, Attention:
Brigid
Mattingly (with copies to the attention of Robert F. Darling, Esq.,
Wells Fargo
Bank, National Association, 633 Folsom Street, 7th Floor, MAC
A0149-075, San
Francisco, California 94107), or such other address as may be
designated by the
Mortgage Loan Seller to the Purchaser in writing.
15
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated
except by a
writing signed by a duly authorized officer of the party against
whom
enforcement of such change, waiver, discharge or termination is
sought to be
enforced. This Agreement may be executed in any number of
counterparts, each of
which shall for all purposes be deemed to be an original and all of
which shall
together constitute but one and the same instrument. This Agreement
will inure
to the benefit of and be binding upon the parties hereto and their
respective
successors and assigns, and no other person will have any right or
obligation
hereunder. Notwithstanding any contrary provision of this Agreement
or the
Pooling and Servicing Agreement, the Purchaser shall not consent to
any
amendment of the Pooling and Servicing Agreement which will
increase the
obligations of, or otherwise adversely affect, the Mortgage Loan
Seller, without
the consent of the Mortgage Loan Seller.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Mortgage Loan Seller delivered pursuant hereto,
shall remain
operative and in full force and effect and shall survive delivery
of the
Mortgage Loans by the Mortgage Loan Seller to BSCMSI and by BSCMSI
to the Trust,
notwithstanding any restrictive or qualified endorsement or
assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or is
held to be void or unenforceable shall be ineffective to the extent
of such
prohibition or unenforceability without invalidating the remaining
provisions
hereof. Any part, provision, representation, warranty or covenant
of this
Agreement that is prohibited or is held to be void or unenforceable
in any
particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or
unenforceability in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction; Waiver of Trial
by
Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED,
MADE AND TO
BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER
HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH
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
16
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY
LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL
RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF
THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and
take such
further actions as any other party hereto may, from time to time,
reasonably
request in order to effectuate the purposes and to carry out the
terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of
the
Mortgage Loan Seller under this Agreement shall not be assigned by
the Mortgage
Loan Seller without the prior written consent of the Purchaser,
except that any
person into which the Mortgage Loan Seller may be merged or
consolidated, or any
person resulting from any merger, conversion or consolidation to
which the
Mortgage Loan Seller is a party, or any person succeeding to all or
substantially all of the business of the Mortgage Loan Seller,
shall be the
successor to the Mortgage Loan Seller hereunder. In connection with
its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals
hereto,
BSCMSI is expressly authorized to assign its rights under this
Agreement, in
whole or in part, to the Trustee for the benefit of the registered
holders and
beneficial owners of the Certificates. To the extent of any such
assignment, the
Trustee, for the benefit of the registered holders and beneficial
owners of the
Certificates, shall be the Purchaser hereunder. Subject to the
foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable
by the
Mortgage Loan Seller and the Purchaser, and their respective
successors and
permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall provide the
Purchaser with such information about itself, the Mortgage Loans
and the
underwriting and servicing procedures applicable to the Mortgage
Loans as is (i)
customary in commercial mortgage loan securitization transactions,
(ii) required
by a Rating Agency or a governmental agency or body or (iii)
reasonably
requested by the Purchaser for use in a public or private
disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that
certain groups
of Mortgage Loans are, in the case of each such particular group of
Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted
and cross-collateralized, if identified as such on the Mortgage
Loan Schedule.
For purposes of reference, the Mortgaged Property that relates or
corresponds to
any of the Mortgage Loans referred to in this Section 17 shall be
the property
identified in the Mortgage Loan Schedule as corresponding thereto.
The
provisions of this Agreement, including, without limitation, each
of the
representations and warranties set forth in 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
17
constituting such Cross-Collateralized Group shall be deemed an
inclusion of
such original in the Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire
agreement and
understanding of the parties with respect to the matters addressed
herein, and
this Agreement supersedes any prior agreements and/or
understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused this Agreement to be duly executed by their respective
officers as of the
day and year first above written.
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------
Name:
Brigid M. Mattingly
Title: Managing Director
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
------------------------------------
Name:
Richard A. Ruffer Jr.
Title: Vice President
WFB MLPA
EXHIBIT A
SCHEDULE OF WELLS FARGO BANK POOLED MORTGAGE LOANS
Ex. A-1
ID
CMSA LOAN NO.
CMSA PROPERTY NO.
SELLER LOAN NUMBER
PROPERTY NAME
LOAN GROUP
-----
-------------
-----------------
------------------
------------------------------------------
----------
2
2
2-001
510905258
One Newark Center
1
3
3
510905051
Life Time Fitness Portfolio
1
3-a
3-001
510905051A
Life Time Fitness - Prairie Center Drive
3-b
3-002
510905051B
Life Time Fitness - Cedar Lake Road
3-c
3-003
510905051C
Life Time Fitness - Baker Road
3-d
3-004
510905051D
Life Time Fitness - E. Moore Lake Drive
3-e
3-005
510905051E
Life Time Fitness - Yamato Road
3-f
3-006
510905051F
Life Time Fitness - West 98th Street
13
13
13-001
310904833
City Center West
1
14
14
14-001
310904832
Molina Building
1
15
15
15-001
310904999
Canyon Plaza Center
1
18
18
18-001
310904536
Pheasant Lake Estates
2
23
23
23-001
310904876
Ramada Plaza - LaGuardia Airport
1
28
28
28-001
310904840
Marriott Detroit Livonia
1
31
31
31-001
310904655
Owensboro Towne Center
1
33
33
33-001
310904972
YUM Building
1
35
35
35-001
610903985
Staunton Plaza
1
53
53
310902900
Michigan MHC Portfolio
1
53-a
53-001
310902900A
Century Mobile Home Park - Lansing, MI
53-b
53-002
310902900B
Ackels MHP - Madison Heights, MI
57
57
57-001
310904601
New Garden Town Center
1
62
62
62-001
310904931
Crowne Plaza Hotel Virgina Beach
1
63
63
63-001
310904933
Comfort Inn Oceanfront South
1
64
64
64-001
310904821
Hampton Inn Reading
1
67
67
67-001
310904791
Cherry Hill Shopping Center
1
68
68
68-001
310904271
Courtyard Bristol
1
75
75
75-001
310905012
Planning Design Build, Inc.
1
79
79
79-001
310904813
Calaveras Shopping Center
1
83
83
83-001
310904437
Westminster Towers
2
86
86
86-001
310904519
Hilton Garden Inn Kennett Square
1
89
89
89-001
310904568
Sundial MHP
1
93
93
93-001
310904642
Pinellas Park Square
1
94
94
94-001
310904607
Salina Meadows I&III
1
95
95
95-001
310903891
Montrose Retail Center
1
96
96
96-001
310904920
Coliseum Meadows Shopping Center
1
98
98
98-001
310904733
Burke Lake Self Storage
1
104
104
104-001
310904577
Comfort Suites - Leesburg
1
106
106
106-001
310904455
Hilton Garden Inn-Oakdale, MN
1
109
109
109-001
310904900
A-American Pico
1
113
113
113-001
310904482
Shops at the Village
1
117
117
117-001
310904897
Zuni Center
1
121
121
121-001
310904935
Candlewood Suites Virginia Beach
1
128
128
128-001
310904863
Placentia Village Plaza
1
131
131
131-001
310904614
Niagara Water Industrial
1
135
135
135-001
310905027
Colorado Crossroads Retail-Office Building
1
136
136
136-001
310904867
6421 N. Thornydale Road
1
142
142
142-001
410903333
4401 Wilshire Boulevard
1
144
144
144-001
310905071
Hampton Inn Emporia
1
145
145
145-001
410904523
Redhill Business Center
1
148
148
148-001
410904673
A-American Lancaster
1
154
154
154-001
410904539
The Holladay House
1
156
156
156-001
310904297
Hampton Inn - Middleburg Heights
1
161
161
161-001
410904883
Rite Aid - Lansdale
1
162
162
162-001
410904629
Copperfield Shopping Center
1
165
165
165-001
410904649
One Energy Square
1
169
169
169-001
620904906
The Enclave at Coles Crossing
1
170
170
170-001
620904676
Bison and L&W Supply Buildings
1
172
172
172-001
410904806
Parfet Street
1
173
173
173-001
410904582
15100-15140 Paramount Blvd.
1
174
174
174-001
410904764
MeritCare Medical Office
1
176
176
176-001
620905018
Saddle Creek Apartments
2
179
179
179-001
410904516
925 Thompson Place
1
180
180
180-001
310904298
Hampton Inn - Kent
1
183
183
183-001
410904742
The Meadows Apartments
2
188
188
188-001
410904820
Stock Building Supply - Mission
1
189
189
189-001
620904784
College Plaza
1
190
190
190-001
620904944
Red Rock Plaza
1
193
193
193-001
620904755
Ponderosa Business Park
1
194
194
194-001
620904998
Flynn Avenue Self Storage
1
195
195
195-001
410904407
Laurel Convenience Center
1
196
196
196-001
410904481
724 Enterprise Drive
1
197
197
197-001
410904880
Camino Verde Retail Center - Phoenix
1
198
198
410904504
Rite Aid - Alabama
1
198-a
198-001
410904504A
Rite Aid - Alabama - N. Wood Ave.
198-b
198-002
410904504B
Rite Aid - Alabama - Forest Road
199
199
199-001
410904703
PineRidge Business Center
1
201
201
201-001
620904811
Southwest Mold Building
1
202
202
202-001
410904952
Freeway Mini Storage
1
203
203
203-001
410904677
A-American Peoria
1
204
204
204-001
410901478
Herons
Landing
2
205
205
205-001
410904705
Master Key Storage
1
206
206
410904505
Rite Aid - Birmingham/Horn Lake
1
206-a
206-001
410904505A
Rite Aid - Birmingham
206-b
206-002
410904505B
Rite Aid - Horn Lake
207
207
207-001
410904659
Union Hills II Retail
1
208
208
208-001
410904809
Camden Apartments
2
210
210
210-001
410905005
4501 South 70th Street
1
211
211
211-001
410904512
Olde Oak Center
1
213
213
213-001
410904670
20562 Crescent Bay
1
214
214
214-001
410904894
Mesa Retail Center
1
218
218
218-001
410903706
Cloverly Village Shopping Center
1
223
223
223-001
410904678
A-American East Peoria
1
226
226
226-001
410905037
Walgreens - Madison, WI
1
229
229
229-001
410904684
HomeStar Office Building
1
232
232
232-001
410904896
Majestic Liquor Store
1
234
234
234-001
410904679
A-American Forest Hills
1
239
239
239-001
410904862
2400 Florin Road
1
240
240
240-001
410905062
Fed Ex - Hurricane
1
241
241
241-001
620904868
1461 N. Daly Street
1
242
242
242-001
410904962
Glendale Center
1
244
244
244-001
620904882
7020 Hayvenhurst Industrial
1
245
245
245-001
620904912
University North Apartments
2
247
247
247-001
410904904
Lake Pointe Office Center
1
248
248
248-001
620904911
Metro View I & II Apartments
2
249
249
249-001
410904942
Larbrook Properties Huntington Beach CA
1
250
250
250-001
410904885
715 Avenue H
1
ID
ADDRESS
CITY
STATE
-----
-----------------------------------------------------------------------------------------
------------------
-------
2
1085 Raymond Boulevard
Newark
NJ
3
Various
Various
Various
3-a
755 Prairie Center Drive
Eden Prairie
MN
3-b
5525 Cedar Lake Road
St. Louis Park
MN
3-c
6233 Baker Road
Eden Prairie
MN
3-d
1200 E. Moore Lake Drive
Fridley
MN
3-e
1499 Yamato Road
Boca Raton
FL
3-f
1001 West 98th Street
Bloomington
MN
13
7251 West Lake Mead Blvd
Las Vegas
NV
14
8801 Horizon Boulevard NE
Albuquerque
NM
15
5701-5791 Santa Ana Canyon Road
Anaheim Hills
CA
18
1 Pheasant Circle
Beecher
IL
23
37-10 114th Street
Flushing
NY
28
17100 N Laurel Park Drive
Livonia
MI
31
5151 Frederica Street
Owensboro
KY
33
101 Yorkshire Blvd.
Lexington
KY
35
1015 Richmond Avenue
Staunton
VA
53
Various
Various
MI
53-a
215 North Canal Road
Lansing
MI
53-b
25151 Dequindre Road
Madison Heights
MI
57
350 Scarlett Road
Kennett Square
PA
62
4453 Bonney Road
Virginia Beach
VA
63
8031 Old Oregon Inlet Road
Nags Head
NC
64
1800 Paper Mill Rd
Wyomissing
PA
67
6601 Annapolis Road
Landover Hills
MD
68
3169 Linden Drive
Bristol
VA
75
901 Deming Way
Madison
WI
79
175-275 W. Calaveras Blvd.
Milpitas
CA
83
10925 Park Avenue South
Tacoma
WA
86
815 East Baltimore Pike
Kennett Square
PA
89
2121 N. Center Street
Mesa
AZ
93
11141 U.S Highway 19 North and 5251 110th Avenue North
Clearwater
FL
94
220 Salina Meadows Parkway & 301 Plainfield Road
Syracuse
NY
95
1521 & 1541 Oxbow Drive
Montrose
CO
96
4896-5034 South Virginia Street
Reno
NV
98
6120 Little Ox Road
Fairfax Station
VA
104
80 Prosperity Avenue
Leesburg
VA
106
420 Inwood Avenue
Oakdale
MN
109
4174 West Pico Boulevard
Los Angeles
CA
113
1185, 1107 - 1147 California Street, 625 - 665 Booth Street, 1226 -
1230 Westfield Avenue
Reno
NV
117
5555 Zuni Road SE
Albuquerque
NM
121
4437 Bonney Road
Virgina Beach
VA
128
1414-1490 N. Kraemer Blvd.
Placentia
CA
131
1025 Runway Drive
Stockton
CA
135
1415 East Colorado Street
Glendale
CA
136
6421 N. Thorydale Road
Tucson
AZ
142
4401 Wilshire Boulevard
Los Angeles
CA
144
898 Wiggins Road
Emporia
VA
145
3185, 3187, 3189 Pullman Street
Costa Mesa
CA
148
141 W. Avenue L
Lancaster
CA
154
3705 Kennett Pike
Greenville
DE
156
7074 Engle Road
Middleburg Heights
OH
161
1390 S. Valley Forge Road
Landsdale
PA
162
5702 South Staples Drive
Corpus Christi
TX
165
3100 Andrews Highway
Odessa
TX
169
12300 Dundee Road
Cypress
TX
170
17608 & 17808 E. 24th Drive
Aurora
CO
172
645 & 655 Parfet Street
Lakewood
CO
173
15100-15140 Paramount Blvd.
Paramount
CA
174
1705 Anne Street
Bemidji
MN
176
5401 W. 57th Street
Sioux Falls
SD
179
921-927 Thompson Place
Sunnyvale
CA
180
4406 State Route 43
Kent
OH
183
1101 Sandusky Place
Perrysburg
OH
188
1243 E. Business Highway 83
Mission
TX
189
3130 - 3150 E. Union Hills Drive
Phoenix
AZ
190
4425 & 4441 West Ashlan Ave.
Fresno
CA
193
7505-7555 Jurupa Avenue
Riverside
CA
194
199 Flynn Avenue
Burlington
VT
195
14631 & 14651 Laurel Bowie Road
Laurel
MD
196
724 Enterprise Drive
Oak Brook
IL
197
4010-4030 East Greenway Road
Phoenix
AZ
198
Various
Various
AL
198-a
1313 N. Wood Ave.
Florence
AL
198-b
220 Forest Road
Hueytown
AL
199
2200 Tall Pines Drive
Largo
FL
201
740 West Knox Road
Tempe
AZ
202
4875 Market Street
Ventura
CA
203
9219 North Industrial Road
Peoria
IL
204
18540 SW Boones Ferry Road
Tualatin
OR
205
24275 US Highway 19 N
Clearwater
FL
206
Various
Various
Various
206-a
1337 Montclair Road
Birmingham
AL
206-b
3100 Goodman Road
Horn Lake
MS
207
18635 North 35th Avenue
Phoenix
AZ
208
2019 4th Avenue North
Sauk Rapids
MN
210
4501 South 70th Street
Lincoln
NE
211
321 Independence Blvd.
Dover
DE
213
20562 Crescent Bay
Lake Forest
CA
214
1152 N. Power Road
Mesa
AZ
218
15410-40 New Hampshire Avenue
Silver Spring
MD
223
1591 North Main Street
East Peoria
IL
226
108 Cottage Grove Road
Madison
WI
229
23625 Commerce Park Road
Beachwood
OH
232
14733 Inwood Road
Addison
TX
234
6210 Forest Hills Road
Loves Park
IL
239
2400 Florin Road
Sacramento
CA
240
5698 W. 155 North
Hurricane
UT
241
1461 N. Daly Street
Anaheim
CA
242
515- 521 1/2 South Verdugo Road
Glendale
CA
244
7020 Hayvenhurst Avenue
Van Nuys
CA
245
327 7th Ave S
St. Cloud
MN
247
872-882 Grove Road
Ypsilanti
MI
248
302 & 310 8th Ave S
St. Cloud
MN
249
15402 - 15432 Electronic Lane
Huntington Beach
CA
250
715 Avenue H East
Arlington
TX
P&I MONTHLY DEBT
IO MONTHLY DEBT
INTEREST ACCRUAL
ID
ZIP CODE
ORIGINAL BALANCE
CUT-OFF DATE BALANCE
SERVICE
SERVICE
MORTGAGE RATE
BASIS
-----
--------
----------------
--------------------
----------------
---------------
-------------
----------------
2
07102
96,700,000
96,700,000
NAP
457,534
5.60000%
Actual/360
3
Various
80,000,000
80,000,000
503,285
NAP
5.75000%
Actual/360
3-a
55344
21,223,768
21,223,768
3-b
55416
17,262,377
17,262,377
3-c
55346
15,540,033
15,540,033
3-d
55432
11,578,642
11,578,642
3-e
33431
11,145,180
11,145,180
3-f
55431
3,250,000
3,250,000
13
89128
21,000,000
21,000,000
125,771
106,281
5.99000%
Actual/360
14
87113
13,000,000
13,000,000
77,858
65,793
5.99000%
Actual/360
15
92807
32,000,000
31,966,906
187,761
NAP
5.80000%
Actual/360
18
60401
28,000,000
28,000,000
172,037
147,386
6.23000%
Actual/360
23
11368
22,000,000
22,000,000
135,458
116,175
6.25000%
Actual/360
28
48152
18,000,000
18,000,000
116,296
94,292
6.20000%
Actual/360
31
42301
16,217,000
16,217,000
98,274
83,581
6.10000%
Actual/360
33
40509
16,000,000
16,000,000
93,880
78,407
5.80000%
Actual/360
35
24401
14,100,000
1
