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 Principal
Commercial Funding
II, LLC ("PCFII"), 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
PCFII 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.
PCFII 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 PCFII, 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 $49,590,611, subject
to a variance
of plus or minus 5%. The purchase price for the Mortgage Loans
shall be
$49,647,706.58, 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
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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.
The parties acknowledge that a servicing rights purchase agreement
dated as of the date hereof will be executed between the applicable
Master
Servicer for the Mortgage Loans sold hereunder and the Mortgage
Loan Seller,
which agreement shall entitle the Mortgage Loan Seller (as the
present owner of
the Mortgage Loans) to a separate payment from such Master Servicer
in exchange
for the benefit of such Master Servicer becoming the applicable
Master Servicer
of the Mortgage Loans sold hereunder (and any Replacement Pooled
Mortgage Loan
therefor) and also will contemplate the execution and delivery of
the PCFII
Primary Servicing Agreement providing for the primary servicing of
the Mortgage
Loans sold hereunder (and any Replacement Pooled Mortgage Loans
therefor) by
Principal Global Investors, LLC (or a successor thereto).
(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
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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 (or a Primary Servicer
on its
behalf) 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
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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 either the
Mortgage Loan
Seller's (i) rights as the beneficiary thereof and drawing party
thereunder or
(ii) right to receive the proceeds of any draw under such Letter of
Credit (it
being acknowledged that the Mortgage Loan Seller shall not be
required to change
the named beneficiary of such Letter of Credit). In addition, the
Mortgage Loan
Seller hereby agrees that (i) the proceeds of such Letter of Credit
belong to
the Trustee on behalf of the Certificateholders, (ii) it shall
notify, on or
before the Closing Date, the bank issuing such Letter of Credit
that such Letter
of Credit and the proceeds thereof belong to the Trustee, and shall
use
reasonable efforts to obtain within 30 days (but in any event to
obtain within
90 days) following the Closing Date, an acknowledgement thereof by
the bank or a
reissued letter of credit and (iii) it will indemnify the Trust for
any
liabilities, charges, costs, fees or other expenses accruing from
the failure of
the Mortgage Loan Seller to assign to the Trust all rights in and
to such Letter
of Credit as set forth herein, including the right and power to
draw on such
Letter of Credit. 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
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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 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
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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.
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(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
8
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
9
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%.
10
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
11
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.
12
(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;
13
(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;
14
(iv)
A certificate of good standing with respect to the Mortgage
Loan Seller issued by the Secretary of State of the State of
Delaware not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v)
A Certificate of the Mortgage Loan Seller substantially in
the form of Exhibit D-2 hereto, executed by an executive officer of
the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated
the
Closing Date, and upon which the Interested Parties may rely;
(vi)
[Reserved];
(vii)
A written opinion of Dechert 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 Dechert 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.
15
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 801 Grand Avenue, Des Moines, Iowa 50392, Attention:
Margie A.
Custis (with copies to the attention of Leanne S. Valentine, Esq.),
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 unenforceabili
