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 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 II Inc. ("BSCMSII"), 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 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, 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.
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.
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 $403,635,970, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be
$400,032,558.31, 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
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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
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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
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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
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
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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.
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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.
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(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
8
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
9
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
10
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.
11
(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
12
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.
13
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);
(viii)
A letter from Andrews Kurth 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;
14
(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 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.
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
15
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,
16
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 securitization transactions,
(ii) required
by a Rating Agency or a governmental agency or body or (iii)
reasonably
requested by the Purchaser for use in a public or private
disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that
certain groups
of Mortgage Loans are, in the case of each such particular group of
Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted
and cross-collateralized, if identified as such on the Mortgage
Loan Schedule.
For purposes of reference, the Mortgaged Property that relates or
corresponds to
any of the Mortgage Loans referred to in this Section 17 shall be
the property
identified in the Mortgage Loan Schedule as corresponding thereto.
The
provisions of this Agreement, including, without limitation, each
of the
representations and warranties set forth in Exhibit C hereto and
each of the
capitalized terms used herein but defined in the Pooling and
Servicing
Agreement, shall be interpreted in a manner consistent with this
Section 17. In
addition, if there exists with respect to any Cross-Collateralized
Group only
one original of any document referred to in the definition of
"Mortgage File" in
the Pooling and Servicing Agreement and covering all the Mortgage
Loans in such
Cross-Collateralized Group, the inclusion of the original of such
document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such
original in the
Mortgage File for each such Mortgage Loan.
17
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:
/s/ Brigid M. Mattingly
--------------------------
Name:
Brigid M. Mattingly
Title:
Managing Director
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES II INC.
By:
/s/ Richard A. Ruffer Jr.
--------------------------
Name:
Richard A. Ruffer Jr.
Title:
Vice President
SCHEDULE A
(BSCMSI 2006-PWR11)
WELLS FARGO LOANS
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
1. Mortgage Loan Schedule.
2. Ownership of Mortgage Loans.
o
510 Bering (610903176)($9,850,000): Non-cashiering sub-servicing
rights
retained by third party (Live Oak Capital, Ltd.)
o
7435 West Cactus (620903083)($2,200,000): Non-cashiering
sub-servicing
rights retained by third party (DePaul Real Estate Investment)
o
DeSerpa Plaza Circle Commercial Bldg. (620903102)($1,480,000):
Non-cashiering sub-servicing rights retained by third party
(NorthMarq
Capital, Inc.)
o
DeSerpa Broadway Plaza (620903114)($1,165,000): Non-cashiering
sub-servicing rights retained by third party (NorthMarq Capital,
Inc.)
3. Payment Record.
4. Lien; Valid Assignment
o
Riverdale Crossing (310903027)($33,200,000): One tenant at
mortgaged
property (Wal-Mart) has right to elect expansion, which is not
limited
in size, and another tenant at mortgaged property (Cub Foods) has
right
to approve a Wal-Mart expansion that exceeds approximately 29,000
square
feet; If a Wal-Mart expansion triggers Cub Food's approval rights
and is
not approved, such expansion, if pursued, would afford Cub Foods
various
remedies, including lease termination or other legal or equitable
relief; Loan becomes fully recourse if Borrower does not perform
Wal-Mart expansion; Also, Borrower and warm body carve-out
guarantors
(Jerome Hertel and Gary Janisch, who have combined stated net worth
of
$28.5 million) are liable for losses resulting from Cub Food's
exercise
of any such remedy; Further, other circumstances suggest a
diminished
likelihood of Wal-Mart's exercising its expansion option: the
available
expansion area can only accommodate an increase of 29,000 square
feet to
the current 114,000 square foot leased area, while accommodating a
"Super Wal-Mart" -type store (typically a 175,000 square foot
template)
would require an additional 61,000 square feet
o
Huntington Park Retail (310903231)($15,760,000): Tenant (In-N-Out
Burger) has 30-day Right of First Negotiation (ROFN) to purchase
its
leased premises or any part of the mortgaged property if such
property
is on the market; ROFN is not extinguished by foreclosure;
Foreclosure
or deed-in-lieu does not constitute ROFN trigger, however
o
Sunrise Lake Village (310902818)($12,850,000)(A/B): $800,000 B Note
payable to CBA Mezzanine Capital Finance, LLC: B Note and right of
holder of B Note to receive payments is junior and subordinate to A
Note
and rights of holder of A Note; A and B Notes are cross-defaulted
o
Flamingo Buffalo Center Las Vegas (310903360)($11,400,000):
Out-parcel
tenant (McDonalds) has right of first refusal (ROFR) to purchase
its
out-parcel only (not entirety of mortgaged property); ROFR is not
extinguished by foreclosure; Neither foreclosure nor deed-in-lieu,
nor
any other transfer of entirety of mortgaged property, constitutes
ROFR
trigger, however
o
Hilton Garden Inn Overland Park (310903491)($9,750,000): Franchise
License Agreement contains Right of First Offer in favor of Hilton
Inn
to Purchase the related property (as well as ownership interest in
Borrower if transferred); Lender's acquisition of property (by
foreclosure or otherwise) does not constitute ROFO trigger, however
o
Eastern Shopping Center (310903346)($9,370,000): Tenant (Cash Wise
Foods) right of first refusal (ROFR) to purchase entirety of
mortgaged
property; ROFR is not extinguished by foreclosure; Lender's initial
acquisition of property (by foreclosure or otherwise) does not
constitute ROFR trigger, however
o
5 Sierra Gate Plaza (410903337)($4,200,000): Tenant (PremierWest)
has
right of first refusal (ROFR) to purchase entirety of mortgaged
property; ROFR is not extinguished by foreclosure; Foreclosure or
deed-in-lieu does not constitute ROFR trigger, however; Following
foreclosure, Tenant has Right of First Offer (ROFO) until Lender
transfers property to unrelated third party
5. Assignment of Leases and Rents.
6. Mortgage Status; Waivers and Modifications.
7. Condition of Property; Condemnation.
o
50 North La Cienega Bldg.( 310901791)($12,500,000): Engineering
report
dated 09.15.2004, more than 18 months prior to BSCMSI 2006-PWR11
closing
date
8. Title Insurance.
9. No Holdback.
10. Mortgage Provisions.
11. Trustee under Deed of Trust.
12. Environmental Conditions.
Schedule A Loans (In lieu of Phase I, property was included in
lender's
group secured creditor impaired policy or separate
