EXECUTION COPY
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"),
is dated and effective as of March 8, 2006, between Bear Stearns
Commercial
Mortgage, Inc. ("BSCMI"), as seller (in such capacity, together
with its
successors and permitted assigns hereunder, the "Mortgage Loan
Seller"), and
Bear Stearns Commercial Mortgage Securities II Inc. ("BSCMSII"), as
purchaser
(in such capacity, together with its successors and permitted
assigns hereunder,
the "Purchaser").
RECITALS
BSCMI desires to sell, assign, transfer, set over and otherwise
convey to BSCMSII, without recourse, representation or warranty,
other than as
set forth herein, and BSCMSII desires to purchase, subject to the
terms and
conditions set forth herein, the multifamily and commercial
mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule
annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may
be amended
from time to time pursuant to the terms hereof.
BSCMSII intends to create a trust (the "Trust"), the primary assets
of which will be a segregated pool of multifamily and commercial
mortgage loans
that includes the Mortgage Loans and certain other commercial and
multifamily
mortgage loans (collectively, the "Trust Mortgage Loans").
Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust
Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated
by Fitch,
Inc. and Standard & Poor's Ratings Services, a division of The
McGraw Hill
Companies, Inc. (together, the "Rating Agencies"). Certain classes
of the
Certificates (the "Registered Certificates") will be registered
under the
Securities Act of 1933, as amended (the "Securities Act"). The
Trust will be
created and the Certificates will be issued pursuant to a pooling
and servicing
agreement to be dated as of March 1, 2006 (the "Pooling and
Servicing
Agreement"), among BSCMSII, as depositor (in such capacity, the
"Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a
"Master Servicer"), 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
special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as
trustee (the
"Trustee"). Capitalized terms used but not otherwise defined herein
shall have
the respective meanings assigned to them in the Pooling and
Servicing Agreement
as in full force and effect on the Closing Date (as defined in
Section 1
hereof). It is anticipated that BSCMSII will transfer the Mortgage
Loans to the
Trust contemporaneously with its purchase of the Mortgage Loans
hereunder.
BSCMSII intends to sell the Registered Certificates to Bear,
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 BSCMSII and the Underwriters; and BSCMSII 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 BSCMSII and
the Initial Purchasers. The Registered Certificates are more fully
described in
the prospectus dated December 1, 2005 (the "Base Prospectus"), and
the
supplement to the Base Prospectus dated March 8, 2006 (the
"Prospectus
Supplement"; and, together with the Base Prospectus, the
"Prospectus"), as each
may be amended or supplemented at any time hereafter. The
Non-Registered
Certificates are more fully described in the private placement
memorandum dated
the date hereof (the "Memorandum"), as it may be amended or
supplemented at any
time hereafter.
BSCMI 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 the Depositor, the
Underwriters
and the Initial Purchasers.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller agrees
to
sell, assign, transfer, set over and otherwise convey to the
Purchaser, without
recourse, representation or warranty, other than as set forth
herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject
to the terms
and conditions set forth herein, the Mortgage Loans. The purchase
and sale of
the Mortgage Loans shall take place on March 21, 2006 or such other
date as
shall be mutually acceptable to the parties hereto (the "Closing
Date"). As of
the Cut-off Date, the Mortgage Loans will have an aggregate
principal balance,
after application of all payments of principal due on the Mortgage
Loans on or
before such date, whether or not received, of $741,793,457, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be
$728,466,187.36, which purchase price excludes accrued interest and
applicable
deal expenses. The Purchaser shall pay such purchase price, plus
interest
accrued on the Mortgage Loans from the Cut-off Date to the Closing
Date and any
applicable deal expenses, to the Mortgage Loan Seller on the
Closing Date by
wire transfer in immediately available funds or by such other
method as shall be
mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a)
Effective as of the Closing Date, subject only to receipt
of the purchase price referred to in Section 1 hereof and the other
conditions
to the Mortgage Loan Seller's obligations set forth herein, the
Mortgage Loan
Seller does hereby sell, assign, transfer, set over and otherwise
convey to the
Purchaser, without recourse, representation or warranty, other than
as set forth
herein, all of the right, title and interest of the Mortgage Loan
Seller in, to
and under the Mortgage Loans and all documents included in the
related Mortgage
Files and Servicing Files. Such assignment includes all scheduled
payments of
principal and interest under and proceeds of the Mortgage Loans
received after
their respective Cut-off Dates (other than scheduled payments of
interest and
principal due on or before their respective Cut-off Dates, which
shall belong
and be promptly remitted to the Mortgage Loan Seller) together with
all
documents delivered or caused to be delivered hereunder with
respect to such
Mortgage Loans by the Mortgage Loan Seller (including all documents
included in
the related Mortgage Files and Servicing Files and any related
Additional
Collateral). The Purchaser shall be entitled to receive
all scheduled payments of principal and interest due on the
Mortgage Loans after
their respective Cut-off Dates, and all other recoveries of
principal and
interest collected thereon after their respective Cut-off Dates
(other than
scheduled payments of principal and interest due on the Mortgage
Loans on or
before their respective Cut-off Dates and collected after such
respective
Cut-off Dates, which shall belong to the Mortgage Loan Seller). In
no event,
however, shall such conveyance and assignment constitute or be
construed as an
assumption by the Purchaser of, in the case of any Mortgage Loan
that is part of
a Mortgage Loan Group, any obligation or liability that is imposed
only on the
initial holder of such Mortgage Loan under the terms of the related
Mortgage
Loan Group Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to
the Purchaser, as provided herein, the Mortgage Loan Seller shall
not take any
action inconsistent with the Purchaser's ownership of the Mortgage
Loans. Except
for actions that are the express responsibility of another party
hereunder or
under the Pooling and Servicing Agreement, and further except for
actions that
the Mortgage Loan Seller is expressly permitted to complete
subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the
Closing Date,
take all actions required under applicable law to effectuate the
transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b)
The conveyance of the Mortgage Loans and the related rights
and property accomplished hereby is intended by the parties hereto
to constitute
a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right,
title and interest in and to such Mortgage Loans and such other
related rights
and property by the Mortgage Loan Seller to the Purchaser.
Furthermore, it is
not intended that such conveyance be a pledge of security for a
loan. If such
conveyance is determined to be a pledge of security for a loan,
however, then:
(i) this Agreement shall constitute a security agreement under
applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to
the Purchaser a
first priority security interest in all of the Mortgage Loan
Seller's right,
title and interest in and to the Mortgage Loans and all amounts
payable to the
holder(s) of the Mortgage Loans in accordance with the terms
thereof (other than
scheduled payments of interest and principal due and payable on
such Mortgage
Loans on or prior to their respective Cut-Off Dates or, in the case
of a
Replacement Pooled Mortgage Loan, on or prior to the related date
of
substitution); (iii) the assignment by BSCMSII to the Trustee of
its interests
in the Mortgage Loans as contemplated by Section 15 hereof shall be
deemed to be
an assignment of any security interest created hereunder; (iv) the
possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes
with respect
to the Mortgage Loans subject hereto from time to time and such
other items of
property as constitute instruments, money, negotiable documents or
chattel paper
shall be deemed to be "possession by the secured party" or
possession by a
purchaser or person designated by such secured party for the
purpose of
perfecting such security interest under applicable law; and (v)
notifications
to, and acknowledgments, receipts or confirmations from, Persons
holding such
property, shall be deemed to be notifications to, or
acknowledgments, receipts
or confirmations from, securities intermediaries, bailees or agents
(as
applicable) of the Purchaser for the purpose of perfecting such
security
interest under applicable law. The Mortgage Loan Seller and the
Purchaser shall,
to the extent consistent with this Agreement, take such actions as
may be
reasonably necessary to ensure that, if this Agreement were deemed
to create a
security interest in the Mortgage Loans, such security interest
would be a
perfected security interest of first priority under applicable law
and will be
maintained as such throughout the term of this Agreement and the
Pooling and
Servicing Agreement.
(c)
In connection with the Mortgage Loan Seller's assignment
pursuant to Section 2(a) above, the Mortgage Loan Seller, at its
expense, shall
deliver to and deposit with, or cause to be delivered to and
deposited with, the
Trustee or a Custodian appointed thereby, on or before the Closing
Date, the
Mortgage Note for each Mortgage Loan so assigned, endorsed to the
Trustee as
specified in clause (i) of the definition of "Mortgage File", and
on or before
the date that is 45 days following the Closing Date, the remainder
of the
Mortgage File for each Mortgage Loan and any Additional Collateral
(other than
original Letters of Credit and Reserve Funds, which shall be
transferred to the
Trustee or to the applicable Master Servicer) for each Mortgage
Loan.
Notwithstanding the preceding sentence, if the Mortgage Loan Seller
cannot so
deliver, or cause to be delivered, as to any Mortgage Loan
(exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage
Loan), the
original or a copy of any of the documents and/or instruments
referred to in
clauses (ii), (iii), (vii) and (ix)(A) of the definition of
"Mortgage File",
with evidence of recording or filing (if applicable, and as the
case may be)
thereon, solely because of a delay caused by the public recording
or filing
office where such document or instrument has been delivered for
recordation or
filing, as the case may be, then (subject to the obligation of the
Mortgage Loan
Seller to nonetheless (1) from time to time make or cause to be
made reasonably
diligent efforts to obtain such document or instrument (with such
evidence) if
it is not returned within a reasonable period after the date when
it was
transmitted for recording and (2) deliver such document or
instrument to the
Trustee or a Custodian appointed thereby (if such document or
instrument is not
otherwise returned to the Trustee or such Custodian) promptly upon
the Mortgage
Loan Seller's receipt thereof), so long as a copy of such document
or
instrument, certified by the Mortgage Loan Seller or title agent as
being a copy
of the document deposited for recording or filing and (in the case
of such
clause (ii)) accompanied by an Officer's Certificate of the
Mortgage Loan Seller
or a statement from the title agent to the effect that such
original Mortgage
has been sent to the appropriate public recording official for
recordation, has
been delivered to the Trustee on or before the date that is 45 days
following
the Closing Date, the delivery requirements of this subsection
shall be deemed
to have been satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File, and if
the Mortgage
Loan Seller cannot or does not so deliver, or cause to be
delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of
the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the
definition of
"Mortgage File", because such document or instrument has been
delivered for
recording or filing, as the case may be, then (subject to the
obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or
cause to be
made reasonably diligent efforts to obtain such document or
instrument (with
such evidence) if it is not returned within a reasonable period
after the date
when it was transmitted for recording and (2) deliver such document
or
instrument to the Trustee or a Custodian appointed thereby (if such
document or
instrument is not otherwise returned to the Trustee or such
Custodian) promptly
upon the Mortgage Loan Seller's receipt thereof), so long as a copy
of such
document or instrument, certified by the Mortgage Loan Seller, a
title agent or
a recording or filing agent as being a copy of the document
deposited for
recording or filing and accompanied by an Officer's Certificate of
the Mortgage
Loan Seller or a statement from the title agent that such document
or instrument
has been sent to the appropriate public recording official for
recordation
(except that such certification shall not be required if the
Trustee is
responsible for recordation of such document or instrument under
the Pooling and
Servicing Agreement and the Mortgage Loan Seller has delivered the
original
unrecorded document or instrument to the
Trustee on or before the date that is 45 days following the Closing
Date), has
been delivered to the Trustee on or before the date that is 45 days
following
the Closing Date, the delivery requirements of this subsection
shall be deemed
to have been satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File. In
addition, with
respect to each Mortgage Loan (exclusive of any Mortgage Loan that
constitutes a
Non-Trust-Serviced Pooled Mortgage Loan) under which any Additional
Collateral
is in the form of a Letter of Credit as of the Closing Date, the
Mortgage Loan
Seller shall cause to be prepared, executed and delivered to the
issuer of each
such Letter of Credit such notices, assignments and acknowledgments
as are
required under such Letter of Credit to assign, without recourse,
to the Trustee
the Mortgage Loan Seller's rights as the beneficiary thereof and
drawing party
thereunder. Furthermore, with respect to each Mortgage Loan, if
any, as to which
there exists a secured creditor impaired property insurance policy
or pollution
limited liability environmental impairment policy covering the
related Mortgaged
Property, the Mortgage Loan Seller shall cause such policy, within
a reasonable
period following the Closing Date, to inure to the benefit of the
Trustee for
the benefit of the Certificateholders (if and to the extent that it
does not by
its terms automatically inure to the holder of such Mortgage Loan).
For purposes
of this paragraph, the relevant definition of "Mortgage File" shall
be the
definition of such term set forth in the Pooling and Servicing
Agreement as in
full force and effect on the Closing Date.
(d)
As soon as reasonably possible, and in any event within 45
days after the later of (i) the Closing Date (or in the case of a
Replacement
Pooled Mortgage Loan substituted as contemplated by Section 2.03 of
the Pooling
and Servicing Agreement, after the related date of substitution)
and (ii) the
date on which all recording information necessary to complete the
subject
document is received by the Mortgage Loan Seller, the Mortgage Loan
Seller shall
complete (to the extent necessary), and shall submit for recording
or filing, as
the case may be, including via electronic means, if appropriate, in
or with the
appropriate office for real property records or UCC Financing
Statements, as
applicable, each assignment of Mortgage and assignment of
Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment
of Leases that
has been recorded in the name of MERS or its designee) in favor of
the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in
the Pooling
and Servicing Agreement and each assignment of UCC Financing
Statement (except
with respect to any UCC Financing Statement that has been recorded
in the name
of MERS or its designee) in favor of the Trustee referred to in
clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing
Agreement.
Each such assignment shall reflect that it should be returned by
the public
recording office to the Trustee or Mortgage Loan Seller's designee
following
recording, and each such assignment of UCC Financing Statement
shall reflect
that the file copy thereof or an appropriate receipt therefor, as
applicable,
should be returned to the Trustee or Mortgage Loan Seller's
designee following
filing; provided that in those instances where the public recording
office
retains the original assignment of Mortgage or assignment of
Assignment of
Leases the Trustee shall obtain therefrom a copy of the recorded
original. If
the Mortgage Loan Seller's designee has been appointed to receive
such
assignment or such UCC Financing Statement following filing with
the public
recording office, the Mortgage Loan Seller's designee shall, within
a reasonable
time period, deliver such assignment or such UCC Financing
Statement to the
Trustee. If the Mortgage Loan Seller receives written notice that
any assignment
or other instrument of transfer with respect to the Mortgage Loans
is lost or
returned unrecorded or unfiled, as the case may be, because of a
defect therein,
the Mortgage Loan Seller shall prepare or cause the preparation of
a substitute
therefor or cure such defect, as the case may
be. The Mortgage Loan Seller shall be responsible for 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 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 BSCMSII only, that
the Mortgage
Loan Seller has not dealt with any broker, investment banker, agent
or other
person (other than the Depositor, the Underwriters and the Initial
Purchasers)
who may be entitled to any commission or compensation in connection
with the
sale to the Purchaser of the Mortgage Loans.
(d)
The Mortgage Loan Seller hereby represents and warrants that
the information set forth in the Prospectus Supplement complied
with the
disclosure requirements of Regulation AB that arise from its role
as
"originator" (or from the role of any third party as "originator"
of any
Mortgage Loan for which the Mortgage Loan Seller was not the
originator) and
"sponsor" in connection with the issuance of the Registered
Certificates.
(e)
For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Mortgage Loan Seller hereby
agrees to
provide the Purchaser (or with respect to any Serviced Non-Pooled
Pari Passu
Companion Loan that is deposited into an Other Securitization, the
depositor in
such Other Securitization) and the Certificate Administrator with
any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure
opposite which
"Pooled Mortgage Loan Seller" is set forth on Schedule IX and
Schedule X to the
Pooling and
Servicing Agreement within the time periods and in accordance with
the
provisions set forth in the Pooling and Servicing Agreement.
(f)
The Mortgage Loan Seller hereby agrees that it shall be
deemed to make to and for the benefit of the Purchaser, as of the
date of
substitution, with respect to any replacement mortgage loan (a
"Replacement
Mortgage Loan") that is substituted for a Defective Mortgage Loan,
by the
Mortgage Loan Seller pursuant to Section 5(a) of this Agreement,
each of the
representations and warranties set forth in Exhibit C to this
Agreement. From
and after the date of substitution, each Replacement Mortgage Loan,
if any,
shall be deemed to constitute a "Mortgage Loan" hereunder for all
purposes. A
"Defective Mortgage Loan" is any Mortgage Loan as to which there is
an
unremedied Material Breach or Material Document Defect.
(g)
It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall
survive
delivery of the respective Mortgage Files to the Purchaser or its
designee and
shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a)
The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the
Mortgage Loan
Seller of notice, of any Material Breach or Material Document
Defect with
respect to any Mortgage Loan (or, if such Material Breach or
Material Document
Defect, as the case may be, related to whether such Mortgage Loan
is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan,
as of the
related date of substitution), was a Qualified Mortgage, and
provided that the
Mortgage Loan Seller discovered or received prompt written notice
thereof,
within 90 days after any earlier discovery by the Mortgage Loan
Seller or any
party to the Pooling and Servicing Agreement of such Material
Breach or Material
Document Defect, as the case may be) (such 90-day period, in any
case, the
"Initial Resolution Period"), correct or cure such Material
Document Defect or
Material Breach, as the case may be, in all material respects, or
repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided
that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that
such Material
Document Defect or Material Breach, as the case may be, does not
relate to
whether the affected Mortgage Loan is or, as of the Closing Date
(or, in the
case of a Replacement Mortgage Loan, as of the related date of
substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect
or Material
Breach, as the case may be, is capable of being cured but not
within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan
Seller has
commenced and is diligently proceeding with the cure of such
Material Document
Defect or Material Breach, as the case may be, during the
applicable Initial
Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates that such
Material Document Defect or Material Breach, as the case may be,
will be cured
within an additional 90-day period (such additional 90-day period,
the
"Resolution Extension Period"), then the Mortgage Loan Seller shall
have an
additional period equal to any such applicable Resolution Extension
Period to
complete such correction or cure (or, upon failure to complete such
correction
or cure, to repurchase the affected Mortgage Loan); and provided,
further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated
above (but,
in any event, no later than such repurchase would have to have been
completed),
such Mortgage Loan Seller shall be permitted, during the
three-month period
following the Startup Day for the REMIC Pool that
holds the affected Mortgage Loan (or during the two-year period
following such
Startup Day if the affected Mortgage Loan is a "defective
obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury
regulation section
1.860G-2(f)), to replace the affected Mortgage Loan with one or
more Qualifying
Substitute Mortgage Loans and to pay a cash amount equal to the
applicable
Substitution Shortfall Amount. The parties hereto agree that
delivery by the
Trustee (or a Custodian on its behalf) of a certification or
schedule of
exceptions to the Mortgage Loan Seller pursuant to the Pooling and
Servicing
Agreement shall not in and of itself constitute delivery of notice
of any
Material Document Defect or knowledge of the Mortgage Loan Seller
of any
Material Document Defect therein. If any Mortgage Loan is to be
repurchased or
replaced as contemplated by this subsection, the Purchaser or its
designee shall
be entitled to designate the account to which funds in the amount
of the
applicable Purchase Price or Substitution Shortfall Amount (as the
case may be)
are to be wired. Any such repurchase or replacement of a Mortgage
Loan shall be
on a whole loan, servicing released basis. Notwithstanding this
subsection, the
absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or
a lost note affidavit and indemnity with a copy of the Mortgage
Note) and (ii)
by the first anniversary of the Closing Date of originals or copies
of the
following documents (without the presence of any factor that
reasonably
mitigates such absence, non-conformity or irregularity) or of any
Specially
Designated Mortgage Loan Document shall be conclusively presumed to
be a
Material Document Defect and shall obligate the Mortgage Loan
Seller to cure
such Material Document Defect, or, failing that, repurchase the
related Mortgage
Loan or REO Mortgage Loan, all in accordance with the procedures
set forth
herein: (a) the Mortgage and any separate Assignment of Leases as
described by
clauses (ii) and (iii) of the definition of "Mortgage File"; (b)
the title
insurance policy as described in clause (viii) of the definition of
"Mortgage
File" (or, if the policy has not yet been issued, an original or
copy of a
written commitment "marked-up" at the closing of such Mortgage
Loan, interim
binder or the pro forma title insurance policy, in each case
evidencing a
binding commitment to issue such policy); or (c) the assignment of
Mortgage (and
any separate Assignment of Leases) as described by clause (iv) of
the definition
of "Mortgage File". For purposes of this paragraph, the relevant
definition of
"Mortgage File" shall be the definition of such term set forth in
the Pooling
and Servicing Agreement as in full force and effect on the Closing
Date.
The remedies provided for in this subsection with respect to
any Material Document Defect or Material Breach with respect to any
Mortgage Loan shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or
replaced as described above, (y) such Defective Mortgage Loan is
part of a
Cross-Collateralized Group and (z) the applicable document defect
or
breach does not constitute a Material Document Defect or Material
Breach,
as the case may be, as to the other Mortgage Loan(s) that are a
part of
such Cross-Collateralized Group (the "Other Crossed Loans")
(without
regard to this paragraph), then the applicable Document Defect or
Breach
(as the case may be) shall be deemed to constitute a Material
Document
Defect or Material Breach (as the case may be) as to each such
Other
Crossed Loan for purposes of the above provisions, and the Mortgage
Loan
Seller shall be obligated to repurchase or replace each such Other
Crossed
Loan in accordance with the provisions above unless, in the case of
such
Breach or Document Defect:
(A)
the Mortgage Loan Seller (at its expense) delivers or
causes to be delivered to the Trustee an Opinion of Counsel to the
effect that its repurchase of only those Mortgage Loans as to which
a Material Breach has actually occurred without regard to the
provisions of this paragraph (the "Affected Loan(s)") and the
operation of the remaining provisions of this Section 5(a) will not
result in an Adverse REMIC Event with respect to any REMIC Pool, or
an Adverse Grantor Event with respect to either Grantor Trust Pool,
under the Pooling and Servicing Agreement; and
(B)
both of the following conditions would be satisfied if
the Mortgage Loan Seller were to repurchase or replace only the
Affected Loans and not the Other Crossed Loans:
(i)
the debt service coverage ratio for all such
Other Crossed Loan (excluding the Affected Loan(s)) for the
four calendar quarters immediately preceding the repurchase or
replacement is not less than the least of (A) 0.10x below the
debt service coverage ratio for the Cross-Collateralized Group
(including the Affected Loan(s)) set forth in Appendix B to
the Prospectus Supplement, (B) the debt service coverage ratio
for the Cross-Collateralized Group (including the Affected
Loan(s)) for the four preceding calendar quarters preceding
the repurchase or replacement and (C) 1.25x; and
(ii)
the loan-to-value ratio for the Other Crossed
Loans is not greater than the greatest of (A) the
loan-to-value ratio, expressed as a whole number (taken to one
decimal place), for the Cross-Collateralized Group (including
the Affected Loan(s)) set forth in Appendix B to the
Prospectus Supplement plus 10%, (B) the loan-to-value ratio
for the Cross-Collateralized Group (including the Affected
Loan(s)) at the time of repurchase or replacement, and (C)
75%.
The determination of the applicable Master Servicer as to
whether the conditions set forth above have been satisfied shall be
conclusive and binding in the absence of manifest error. The
applicable
Master Servicer will be entitled to cause to be delivered, or
direct the
Mortgage Loan Seller to (in which case the Mortgage Loan Seller
shall)
cause to be delivered, to the applicable Master Servicer an
Appraisal of
any or all of the related Mortgaged Properties for purposes of
determining
whether the condition set forth in clause (ii) above has been
satisfied,
in each case at the expense of the Mortgage Loan Seller if the
scope and
cost of the Appraisal is approved by the Mortgage Loan Seller and
the
Controlling Class Representative (such approval not to be
unreasonably
withheld in each case).
With respect to any Defective Mortgage Loan that forms a part
of a Cross-Collateralized Group and as to which the conditions
described
in the preceding paragraph are satisfied, such that the Trust Fund
will
continue to hold the Other Crossed Loans, the Mortgage Loan Seller
and the
Purchaser agree to forbear from enforcing any remedies against the
other's
Primary Collateral but each is permitted to exercise remedies
against
the Primary Collateral securing its respective Mortgage Loans,
including
with respect to the Trustee, the Primary Collateral securing the
Affected
Loan(s) still held by the Trustee, so long as such exercise does
not
impair the ability of the Mortgage Loan Seller to exercise its
remedies
against its Primary Collateral. If the exercise of remedies by one
such
party would impair the ability of the other such party to exercise
its
remedies with respect to the Primary Collateral securing the
Affected Loan
or the Other Crossed Loans, as the case may be, held by the other
such
party, then both parties shall forbear from exercising such
remedies
unless and until the Mortgage Loan Documents evidencing and
securing the
relevant Mortgage Loans can be modified in a manner that complies
with
this Agreement to remove the threat of impairment as a result of
the
exercise of remedies. Any reserve or other cash collateral or
letters of
credit securing any of the Cross-Collateralized Loans shall be
allocated
between the Mortgage Loans in accordance with the Mortgage Loan
Documents,
or otherwise on a pro rata basis based upon their outstanding
Stated
Principal Balances. All other terms of the Mortgage Loans shall
remain in
full force and effect, without any modification thereof. The
Borrowers set
forth on Schedule V to the Pooling and Servicing Agreement are
intended
third-party beneficiaries of the provisions set forth in this
paragraph
and the preceding paragraph. The provisions of this paragraph and
the
preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Borrower's consent.
All costs and expenses incurred by the Trustee and the
applicable Master Servicer with respect to any Cross-Collateralized
Group
pursuant to the preceding paragraph shall be included in the
calculation
of Purchase Price for the Affected Loan(s) to be repurchased or
replaced.
(b)
Whenever one or more Replacement Mortgage Loans are
substituted for a Defective Mortgage Loan by the Mortgage Loan
Seller as
contemplated by this Section 5, upon direction by the applicable
Master
Servicer, the Mortgage Loan Seller shall deliver to the Trustee the
related
Mortgage File and a certification to the effect that such
Replacement Mortgage
Loan satisfies or such Replacement Mortgage Loans satisfy, as the
case may be,
all of the requirements of the definition of "Qualifying Substitute
Mortgage
Loan". No mortgage loan may be substituted for a Defective Mortgage
Loan as
contemplated by this Section 5 if the Mortgage Loan to be replaced
was itself a
Replacement Mortgage Loan, in which case, absent a cure of the
relevant Material
Breach or Material Document Defect, the affected Mortgage Loan will
be required
to be repurchased as contemplated hereby. Monthly Payments due with
respect to
each Replacement Mortgage Loan (if any) after the related date of
substitution,
and Monthly Payments due with respect to each corresponding Deleted
Mortgage
Loan (if any) after its respective Cut-off Date and on or prior to
the related
date of substitution, shall be part of the Trust Fund. Monthly
Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to
the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date
of
substitution, shall not be part of the Trust Fund and are to be
remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly
following
receipt.
If any Mortgage Loan is to be repurchased or replaced by the
Mortgage Loan Seller as contemplated by this Section 5, upon
direction by the
applicable Master Servicer, the Mortgage Loan Seller shall amend
the Mortgage
Loan Schedule to reflect the removal of any
Deleted Mortgage Loan and, if applicable, the substitution of the
related
Replacement Mortgage Loan(s) and deliver or cause the delivery of
such amended
Mortgage Loan Schedule to the parties to the Pooling and Servicing
Agreement.
Upon any substitution of one or more Replacement Mortgage Loans for
a Deleted
Mortgage Loan, such Replacement Mortgage Loan(s) shall become part
of the Trust
Fund and be subject to the terms of this Agreement in all respects.
(c)
Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage
Loan
repurchased or replaced by the related Mortgage Loan Seller as
contemplated by
this Section 5 has been deposited in the account designated
therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and
further, if
applicable, upon receipt by the Purchaser (or the Trustee or a
Custodian
appointed thereby) of the Mortgage File for each Replacement
Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together with
any
certifications and/or opinions required pursuant to this Section 5
to be
delivered by the Mortgage Loan Seller, the Purchaser (or the
Trustee) shall (i)
release or cause the release of the Mortgage File and any
Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the
Deleted Mortgage
Loan to the Mortgage Loan Seller or its designee and (ii) execute
and deliver
such instruments of release, transfer and/or assignment, in each
case without
recourse, as shall be provided to it and are reasonably necessary
to vest in the
Mortgage Loan Seller or its designee the ownership of the Deleted
Mortgage Loan,
and the Purchaser (or the applicable Master Servicer on its behalf)
shall notify
the affected Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such
repurchase or
substitution by the Mortgage Loan Seller, each of the applicable
Master Servicer
and the Special Servicer (or other servicing agent for the
Purchaser) shall
deliver to the Mortgage Loan Seller or its designee any portion of
the related
Servicing File, together with any Escrow Payments, Reserve Funds
and Additional
Collateral, held by or on behalf of such Master Servicer or the
Special Servicer
(or other servicing agent for 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.
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;
(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 New York 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 BSCMSII and the Underwriters,
which letter shall be substantially in the form of Exhibit
D-3C hereto;
(ix)
copies of all other opinions rendered by
counsel for the Mortgage Loan Seller to the Rating Agencies in
connection with the transactions contemplated by this
Agreement, including, but not limited to, with respect to the
characterization of the transfer of the Mortgage Loans
hereunder as a true sale, with each such opinion to be
addressed to the other Interested Parties and the Trustee or
accompanied by a letter signed by such counsel stating that
the other Interested Parties and the Trustee may rely on such
opinion as if it were addressed to them as of date thereof;
(x)
One or more comfort letters from Deloitte &
Touche LLP, certified public accountants, dated the date of
any preliminary Prospectus Supplement, the Prospectus
Supplement and the Memorandum, respectively, and addressed to,
and in form and substance acceptable to, the Interested
Parties (other than the Rating Agencies), stating in effect
that, using the assumptions and methodology used by BSCMSII or
the Underwriters, as applicable, all of which shall be
described in such letters, they have recalculated such numbers
and percentages relating to the Mortgage Loans set forth in
any preliminary Prospectus Supplement, the Prospectus
Supplement and the Memorandum, compared the results of their
calculations to the corresponding items in any preliminary
Prospectus Supplement, the Prospectus Supplement and the
Memorandum, respectively, and found each such number and
percentage set forth in any 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 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 Mortgage
Loan Seller to the Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated
except by a
writing signed by a duly authorized officer of the party against
whom
enforcement of such change, waiver, discharge or termination is
sought to be
enforced. This Agreement may be executed in any number of
counterparts, each of
which shall for all purposes be deemed to be an original and all of
which shall
together constitute but one and the same instrument. This Agreement
will inure
to the benefit of and be binding upon the parties hereto and their
respective
successors and assigns, and no other person will have any right or
obligation
hereunder. Notwithstanding any contrary provision of this Agreement
or the
Pooling and Servicing Agreement, the Purchaser shall not consent to
any
amendment of the Pooling and Servicing Agreement which will
increase the
obligations of, or otherwise adversely affect, the Mortgage Loan
Seller, without
the consent of the Mortgage Loan Seller.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Mortgage Loan Seller delivered pursuant hereto,
shall remain
operative and in full force and effect and shall survive delivery
of the
Mortgage Loans by the Mortgage Loan Seller to BSCMSII and by
BSCMSII to the
Trust, notwithstanding any restrictive or qualified endorsement or
assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or is
held to be void or unenforceable shall be ineffective to the extent
of such
prohibition or unenforceability without invalidating the remaining
provisions
hereof. Any part, provision, representation, warranty or covenant
of this
Agreement that is prohibited or is held to be void or unenforceable
in any
particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or
unenforceability in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction; Waiver of Trial
by Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS
NEGOTIATED, MADE AND
TO BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER
HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH
RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES
THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST
POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A
FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY
LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL
RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF
THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and
take such
further actions as any other party hereto may, from time to time,
reasonably
request in order to effectuate the purposes and to carry out the
terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of
the Mortgage Loan Seller under this Agreement shall not be assigned
by the
Mortgage Loan Seller without the prior written consent of the
Purchaser, except
that any person into which the Mortgage Loan Seller may be merged
or
consolidated, or any person resulting from any merger, conversion
or
consolidation to which the Mortgage Loan Seller is a party, or any
person
succeeding to all or substantially all of the business of the
Mortgage Loan
Seller, shall be the successor to the Mortgage Loan Seller
hereunder. In
connection with its transfer of the Mortgage Loans to the Trust as
contemplated
by the recitals hereto, BSCMSII is expressly authorized to assign
its rights
under this Agreement, in whole or in part, to the Trustee for the
benefit of the
registered holders and beneficial owners of the Certificates. To
the extent of
any such assignment, the Trustee, for the benefit of the registered
holders and
beneficial owners of the Certificates, shall be the Purchaser
hereunder. Subject
to the foregoing, this Agreement shall bind and inure to the
benefit of and be
enforceable by the Mortgage Loan Seller and the Purchaser, and
their respective
successors and permitted assigns.
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
