MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement (this "Agreement"),
is
dated and effective as of September 13, 2006, between Wells Fargo
Bank, National
Association ("Wells Fargo Bank"), as seller (in such capacity,
together with its
successors and permitted assigns hereunder, the "Mortgage Loan
Seller"), and
Bear Stearns Commercial Mortgage Securities Inc. ("BSCMSI"), as
purchaser (in
such capacity, together with its successors and permitted assigns
hereunder, the
"Purchaser").
RECITALS
Wells Fargo Bank desires to sell, assign, transfer, set over and
otherwise convey to BSCMSI, without recourse, representation or
warranty, other
than as set forth herein, and BSCMSI desires to purchase, subject
to the terms
and conditions set forth herein, the multifamily and commercial
mortgage loans
(collectively, the "Mortgage Loans") identified on the schedule
annexed hereto
as Exhibit A (the "Mortgage Loan Schedule"), as such schedule may
be amended
from time to time pursuant to the terms hereof.
BSCMSI intends to create a trust (the "Trust"), the primary assets
of
which will be a segregated pool of multifamily and commercial
mortgage loans
that includes the Mortgage Loans and certain other commercial and
multifamily
mortgage loans (collectively, the "Trust Mortgage Loans").
Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust
Fund") will be
evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated
by Fitch,
Inc. and Standard & Poor's, a division of The McGraw Hill
Companies, Inc.
(together, the "Rating Agencies"). Certain classes of the
Certificates (the
"Registered Certificates") will be registered under the Securities
Act of 1933,
as amended (the "Securities Act"). The Trust will be created and
the
Certificates will be issued pursuant to a pooling and servicing
agreement to be
dated as of September 1, 2006 (the "Pooling and Servicing
Agreement"), among
BSCMSI, as depositor (in such capacity, the "Depositor"),
Prudential Asset
Resources, Inc., as a master servicer (in such capacity, a "Master
Servicer"),
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"), LNR Partners, Inc., as a special servicer (a
"Special
Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee").
Capitalized terms used but not otherwise defined herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement as
in full force and effect on the Closing Date (as defined in Section
1 hereof).
It is anticipated that BSCMSI will transfer the Mortgage Loans to
the Trust
contemporaneously with its purchase of the Mortgage Loans
hereunder.
BSCMSI intends to sell the Registered Certificates to Bear, Stearns
&
Co. Inc. ("BSC") and Morgan Stanley & Co. Incorporated ("Morgan
Stanley"; and
together with BSC in such capacity, the "Underwriters"), pursuant
to an
underwriting agreement, dated the date hereof (the "Underwriting
Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the
remaining
Certificates (the "Non-Registered Certificates") to BSC and Morgan
Stanley
(together in such capacities, the "Initial Purchasers") pursuant to
a
certificate purchase agreement, dated the date hereof (the
"Certificate Purchase
Agreement"), among BSCMSI and
the Initial Purchasers. The Registered Certificates are more fully
described in
the prospectus dated September 13, 2006 (the "Base Prospectus"),
and the
supplement to the Base Prospectus dated September 13, 2006 (the
"Prospectus
Supplement"; and, together with the Base Prospectus, the
"Prospectus"), as each
may be amended or supplemented at any time hereafter. The
Non-Registered
Certificates are more fully described in the private placement
memorandum dated
the date hereof (the "Memorandum"), as it may be amended or
supplemented at any
time hereafter.
Wells Fargo Bank will indemnify the Depositor, the Underwriters the
Initial Purchasers and certain related parties with respect to the
disclosure
regarding the Mortgage Loans that is contained in the Prospectus,
the Memorandum
and certain other disclosure documents and offering materials
relating to the
Certificates, pursuant to an indemnification agreement, dated as of
the date
hereof (the "Indemnification Agreement"), among Wells Fargo Bank,
the Depositor,
the Underwriters and the Initial Purchasers.
As used herein, "Regulation AB" means Subpart 229.1100 - Asset
Backed
Securities (Regulation AB), 17 C.F.R. Sections 229.1100-229.1123,
as such may be
amended from time to time, and subject to such clarification and
interpretation
as have been provided by the Commission in the adopting release
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506-1,631
(January 7, 2005)) or by the staff of the Commission, or as may be
provided by
the Commission or its staff from time to time.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Mortgage Loan Seller agrees
to
sell, assign, transfer, set over and otherwise convey to the
Purchaser, without
recourse, representation or warranty, other than as set forth
herein, and the
Purchaser agrees to purchase from the Mortgage Loan Seller, subject
to the terms
and conditions set forth herein, the Mortgage Loans. The purchase
and sale of
the Mortgage Loans shall take place on September 27, 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 $762,311,320, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall be
$788,776,532, 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
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the Mortgage Loans and all documents included in the related
Mortgage Files and
Servicing Files. Such assignment includes all scheduled payments of
principal
and interest under and proceeds of the Mortgage Loans received
after their
respective Cut-off Dates (other than scheduled payments of interest
and
principal due on or before their respective Cut-off Dates, which
shall belong
and be promptly remitted to the Mortgage Loan Seller) together with
all
documents delivered or caused to be delivered hereunder with
respect to such
Mortgage Loans by the Mortgage Loan Seller (including all documents
included in
the related Mortgage Files and Servicing Files and any related
Additional
Collateral). The Purchaser shall be entitled to receive all
scheduled payments
of principal and interest due on the Mortgage Loans after their
respective
Cut-off Dates, and all other recoveries of principal and interest
collected
thereon after their respective Cut-off Dates (other than scheduled
payments of
principal and interest due on the Mortgage Loans on or before their
respective
Cut-off Dates and collected after such respective Cut-off Dates,
which shall
belong to the Mortgage Loan Seller). In no event, however, shall
such conveyance
and assignment constitute or be construed as an assumption by the
Purchaser of,
in the case of any Mortgage Loan that is part of a Mortgage Loan
Group, any
obligation or liability that is imposed only on the initial holder
of such
Mortgage Loan under the terms of the related Mortgage Loan Group
Intercreditor
Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to
the
Purchaser, as provided herein, the Mortgage Loan Seller shall not
take any
action inconsistent with the Purchaser's ownership of the Mortgage
Loans. Except
for actions that are the express responsibility of another party
hereunder or
under the Pooling and Servicing Agreement, and further except for
actions that
the Mortgage Loan Seller is expressly permitted to complete
subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the
Closing Date,
take all actions required under applicable law to effectuate the
transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is intended by the parties hereto to
constitute a
sale by the Mortgage Loan Seller of all the Mortgage Loan Seller's
right, title
and interest in and to such Mortgage Loans and such other related
rights and
property by the Mortgage Loan Seller to the Purchaser. Furthermore,
it is not
intended that such conveyance be a pledge of security for a loan.
If such
conveyance is determined to be a pledge of security for a loan,
however, then:
(i) this Agreement shall constitute a security agreement under
applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to
the Purchaser a
first priority security interest in all of the Mortgage Loan
Seller's right,
title and interest in and to the Mortgage Loans and all amounts
payable to the
holder(s) of the Mortgage Loans in accordance with the terms
thereof (other than
scheduled payments of interest and principal due and payable on
such Mortgage
Loans on or prior to their respective Cut-Off Dates or, in the case
of a
Replacement Pooled Mortgage Loan, on or prior to the related date
of
substitution); (iii) the assignment by BSCMSI to the Trustee of its
interests in
the Mortgage Loans as contemplated by Section 15 hereof shall be
deemed to be an
assignment of any security interest created hereunder; (iv) the
possession by
the Purchaser (or the Trustee or its agent) of the Mortgage Notes
with respect
to the Mortgage Loans subject hereto from time to time and such
other items of
property as constitute instruments, money, negotiable documents or
chattel paper
shall be deemed to be "possession by the secured party" or
possession by a
purchaser or person designated by such secured party for the
purpose of
perfecting such security interest under applicable law; and (v)
notifications
to, and acknowledgments, receipts or
3
confirmations from, Persons holding such property, shall be deemed
to be
notifications to, or acknowledgments, receipts or confirmations
from, securities
intermediaries, bailees or agents (as applicable) of the Purchaser
for the
purpose of perfecting such security interest under applicable law.
The Mortgage
Loan Seller and the Purchaser shall, to the extent consistent with
this
Agreement, take such actions as may be reasonably necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be a perfected security interest of
first priority
under applicable law and will be maintained as such throughout the
term of this
Agreement and the Pooling and Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense,
shall deliver
to and deposit with, or cause to be delivered to and deposited
with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date,
the Mortgage
Note for each Mortgage Loan so assigned, endorsed to the Trustee as
specified in
clause (i) of the definition of "Mortgage File", and, on or before
the date that
is 45 days following the Closing Date, the remainder of the
Mortgage File for
each Mortgage Loan and any Additional Collateral (other than
original Letters of
Credit and Reserve Funds, which shall be transferred to the Trustee
or to the
applicable Master Servicer) for each Mortgage Loan. Notwithstanding
the
preceding sentence, if the Mortgage Loan Seller cannot so deliver,
or cause to
be delivered, as to any Mortgage Loan (exclusive of any Mortgage
Loan that
constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the
original or a copy
of any of the documents and/or instruments referred to in clauses
(ii), (iii),
(vii) and (ix)(A) of the definition of "Mortgage File", with
evidence of
recording or filing (if applicable, and as the case may be)
thereon, solely
because of a delay caused by the public recording or filing office
where such
document or instrument has been delivered for recordation or
filing, as the case
may be, then (subject to the obligation of the Mortgage Loan Seller
to
nonetheless (1) from time to time make or cause to be made
reasonably diligent
efforts to obtain such document or instrument (with such evidence)
if it is not
returned within a reasonable period after the date when it was
transmitted for
recording and (2) deliver such document or instrument to the
Trustee or a
Custodian appointed thereby (if such document or instrument is not
otherwise
returned to the Trustee or such Custodian) promptly upon the
Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or
instrument,
certified by the Mortgage Loan Seller or title agent as being a
copy of the
document deposited for recording or filing and (in the case of such
clause (ii))
accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a
statement from the title agent to the effect that such original
Mortgage has
been sent to the appropriate public recording official for
recordation, has been
delivered to the Trustee on or before the date that is 45 days
following the
Closing Date, the delivery requirements of this subsection shall be
deemed to
have been satisfied as to such missing item, and such missing item
shall be
deemed to have been included in the related Mortgage File, and if
the Mortgage
Loan Seller cannot or does not so deliver, or cause to be
delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of
the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the
definition of
"Mortgage File", because such document or instrument has been
delivered for
recording or filing, as the case may be, then (subject to the
obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or
cause to be
made reasonably diligent efforts to obtain such document or
instrument (with
such evidence) if it is not returned within a reasonable period
after the date
when it was transmitted for recording and (2) deliver such document
or
instrument to the Trustee or a Custodian appointed thereby (if such
document or
instrument is not otherwise returned to the
4
Trustee or such Custodian) promptly upon the Mortgage Loan Seller's
receipt
thereof), so long as a copy of such document or instrument,
certified by the
Mortgage Loan Seller, a title agent or a recording or filing agent
as being a
copy of the document deposited for recording or filing and
accompanied by an
Officer's Certificate of the Mortgage Loan Seller or a statement
from the title
agent that such document or instrument has been sent to the
appropriate public
recording official for recordation (except that such certification
shall not be
required if the Trustee is responsible for recordation of such
document or
instrument under the Pooling and Servicing Agreement and the
Mortgage Loan
Seller has delivered the original unrecorded document or instrument
to the
Trustee on or before the date that is 45 days following the Closing
Date), has
been delivered to the Trustee on or before the date that is 45 days
following
the Closing Date, the delivery requirements of this subsection
shall be deemed
to have been satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File. In
addition, with
respect to each Mortgage Loan (exclusive of any Mortgage Loan that
constitutes a
Non-Trust-Serviced Pooled Mortgage Loan) under which any Additional
Collateral
is in the form of a Letter of Credit as of the Closing Date, the
Mortgage Loan
Seller shall cause to be prepared, executed and delivered to the
issuer of each
such Letter of Credit such notices, assignments and acknowledgments
as are
required under such Letter of Credit to assign, without recourse,
to the Trustee
the Mortgage Loan Seller's rights as the beneficiary thereof and
drawing party
thereunder. Furthermore, with respect to each Mortgage Loan, if
any, as to which
there exists a secured creditor impaired property insurance policy
or pollution
limited liability environmental impairment policy covering the
related Mortgaged
Property, the Mortgage Loan Seller shall cause such policy, within
a reasonable
period following the Closing Date, to inure to the benefit of the
Trustee for
the benefit of the Certificateholders (if and to the extent that it
does not by
its terms automatically inure to the holder of such Mortgage Loan).
For purposes
of this paragraph, the relevant definition of "Mortgage File" shall
be the
definition of such term set forth in the Pooling and Servicing
Agreement as in
full force and effect on the Closing Date.
(d) 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
5
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
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
6
Mortgage Loan Seller shall, within 15 days of its discovery or
receipt of notice
of any error on the Mortgage Loan Schedule, amend such Mortgage
Loan Schedule
and deliver to the Purchaser or the Trustee, as the case may be, an
amended
Mortgage Loan Schedule; provided that this sentence shall not be
construed to
relieve the Mortgage Loan Seller of any liability for any related
Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with
any examination
of the Mortgage Files for, and any other documents and records
relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the
Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted
or has failed
to conduct any partial or complete examination of any of the
Mortgage Files for,
and/or any of such other documents and records relating to, the
Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law for a breach of the Mortgage Loan Seller's
representations and
warranties made pursuant to Section 4, except as expressly set
forth in Section
5.
SECTION 4. Representations, Warranties and Covenants of the
Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(and, in connection with any replacement of a Defective Mortgage
Loan (as
defined in Section 4(d) hereof) with one or more Replacement
Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a)
hereof, as of
the related date of substitution), to and for the benefit of the
Purchaser, each
of the representations and warranties set forth in Exhibit B-1. The
Purchaser
hereby makes, as of the Closing Date, to and for the benefit of the
Mortgage
Loan Seller, each of the representations and warranties set forth
in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing Date
(or
as of such other date specifically provided in the particular
representation or
warranty), to and for the benefit of the Purchaser, each of the
representations
and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as of
the
Closing Date, to and for the benefit of BSCMSI only, that the
Mortgage Loan
Seller has not dealt with any broker, investment banker, agent or
other person
(other than the Depositor, the Underwriters and the Initial
Purchasers) who may
be entitled to any commission or compensation in connection with
the sale to the
Purchaser of the Mortgage Loans.
(d) The Mortgage Loan Seller hereby represents and warrants that,
with
respect to the Mortgage Loans and the Mortgage Loan Seller's role
as
"originator" (or the role of any third party as "originator" of any
Mortgage
Loan for which the Mortgage Loan Seller was not the originator) and
"sponsor" in
connection with the issuance of the Registered Certificates, the
information
regarding the Mortgage Loans, the related Borrowers, the related
Mortgaged
Properties and/or the Mortgage Loan Seller contained in the
Prospectus
Supplement complies in all material respects with the applicable
disclosure
requirements of Regulation AB.
(e) For so long as the Trust is subject to the reporting
requirements
of the Exchange Act, the Mortgage Loan Seller hereby agrees to
provide the
Purchaser (or with respect
7
to any Serviced Non-Pooled Pari Passu Companion Loan that is
deposited into an
Other Securitization, the depositor in such Other Securitization)
and the
Certificate Administrator with any Additional Form 10-D Disclosure
and any
Additional Form 10-K Disclosure opposite which "Pooled Mortgage
Loan Seller" is
set forth on Schedule IX and Schedule X to the Pooling and
Servicing Agreement
within the time periods and in accordance with the provisions set
forth in the
Pooling and Servicing Agreement.
(f) The Mortgage Loan Seller hereby agrees that it shall be deemed
to
make to and for the benefit of the Purchaser, as of the date of
substitution,
with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan")
that is substituted for a Defective Mortgage Loan, by the Mortgage
Loan Seller
pursuant to Section 5(a) of this Agreement, each of the
representations and
warranties set forth in Exhibit C to this Agreement. From and after
the date of
substitution, each Replacement Mortgage Loan, if any, shall be
deemed to
constitute a "Mortgage Loan" hereunder for all purposes. A
"Defective Mortgage
Loan" is any Mortgage Loan as to which there is an unremedied
Material Breach or
Material Document Defect.
(g) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall
survive
delivery of the respective Mortgage Files to the Purchaser or its
designee and
shall inure to the benefit of the Purchaser, notwithstanding any
restrictive or
qualified endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the
Mortgage Loan
Seller of notice, of any Material Breach or Material Document
Defect with
respect to any Mortgage Loan (or, if such Material Breach or
Material Document
Defect, as the case may be, related to whether such Mortgage Loan
is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan,
as of the
related date of substitution), was a Qualified Mortgage, and
provided that the
Mortgage Loan Seller discovered or received prompt written notice
thereof,
within 90 days after any earlier discovery by the Mortgage Loan
Seller or any
party to the Pooling and Servicing Agreement of such Material
Breach or Material
Document Defect, as the case may be) (such 90-day period, in any
case, the
"Initial Resolution Period"), correct or cure such Material
Document Defect or
Material Breach, as the case may be, in all material respects, or
repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided
that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that
such Material
Document Defect or Material Breach, as the case may be, does not
relate to
whether the affected Mortgage Loan is or, as of the Closing Date
(or, in the
case of a Replacement Mortgage Loan, as of the related date of
substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect
or Material
Breach, as the case may be, is capable of being cured but not
within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan
Seller has
commenced and is diligently proceeding with the cure of such
Material Document
Defect or Material Breach, as the case may be, during the
applicable Initial
Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates that such
Material Document Defect or Material Breach, as the case may be,
will be cured
within an additional 90-day period (such additional 90-day period,
the
"Resolution Extension Period"), then the Mortgage Loan Seller shall
have an
additional period equal to any such applicable Resolution Extension
Period to
complete such correction or cure (or, upon failure to complete such
8
correction or cure, to repurchase the affected Mortgage Loan); and
provided,
further, that, in lieu of repurchasing the affected Mortgage Loan
as
contemplated above (but, in any event, no later than such
repurchase would have
to have been completed), such Mortgage Loan Seller shall be
permitted, during
the three-month period following the Startup Day for the REMIC Pool
that holds
the affected Mortgage Loan (or during the two-year period following
such Startup
Day if the affected Mortgage Loan is a "defective obligation"
within the meaning
of Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation
section
1.860G-2(f)), to replace the affected Mortgage Loan with one or
more Qualifying
Substitute Mortgage Loans and to pay a cash amount equal to the
applicable
Substitution Shortfall Amount. The parties hereto agree that
delivery by the
Trustee (or a Custodian on its behalf) of a certification or
schedule of
exceptions to the Mortgage Loan Seller pursuant to the Pooling and
Servicing
Agreement shall not in and of itself constitute delivery of notice
of any
Material Document Defect or knowledge of the Mortgage Loan Seller
of any
Material Document Defect therein. If any Mortgage Loan is to be
repurchased or
replaced as contemplated by this subsection, the Purchaser or its
designee shall
be entitled to designate the account to which funds in the amount
of the
applicable Purchase Price or Substitution Shortfall Amount (as the
case may be)
are to be wired. Any such repurchase or replacement of a Mortgage
Loan shall be
on a whole loan, servicing released basis. Notwithstanding this
subsection, the
absence from the Mortgage File, (i) on the Closing Date of the
Mortgage Note (or
a lost note affidavit and indemnity with a copy of the Mortgage
Note) and (ii)
by the first anniversary of the Closing Date of originals or copies
of the
following documents (without the presence of any factor that
reasonably
mitigates such absence, non-conformity or irregularity) or of any
Specially
Designated Mortgage Loan Document shall be conclusively presumed to
be a
Material Document Defect and shall obligate the Mortgage Loan
Seller to cure
such Material Document Defect, or, failing that, repurchase the
related Mortgage
Loan or REO Mortgage Loan, all in accordance with the procedures
set forth
herein: (a) the Mortgage and any separate Assignment of Leases as
described by
clauses (ii) and (iii) of the definition of "Mortgage File"; (b)
the title
insurance policy as described in clause (viii) of the definition of
"Mortgage
File" (or, if the policy has not yet been issued, an original or
copy of a
written commitment "marked-up" at the closing of such Mortgage
Loan, interim
binder or the pro forma title insurance policy, in each case
evidencing a
binding commitment to issue such policy); or (c) the assignment of
Mortgage (and
any separate Assignment of Leases) as described by clause (iv) of
the definition
of "Mortgage File". For purposes of this paragraph, the relevant
definition of
"Mortgage File" shall be the definition of such term set forth in
the Pooling
and Servicing Agreement as in full force and effect on the Closing
Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any
Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced
as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect
or breach does
not constitute a Material Document Defect or Material Breach, as
the case may
be, as to the other Mortgage Loan(s) that are a part of such
Cross-Collateralized Group (the "Other Crossed Loans") (without
regard to this
paragraph), then the applicable Document Defect or Breach (as the
case may be)
shall be deemed to constitute a Material Document Defect or
Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of
the above
provisions, and the Mortgage Loan Seller shall be
9
obligated to repurchase or replace each such Other Crossed Loan in
accordance
with the provisions above unless, in the case of such Breach or
Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or
causes to be delivered to the Trustee an Opinion of Counsel to the
effect that its repurchase of only those Mortgage Loans as to which
a
Material Breach has actually occurred without regard to the
provisions
of this paragraph (the "Affected Loan(s)") and the operation of the
remaining provisions of this Section 5(a) will not result in an
Adverse REMIC Event with respect to any REMIC Pool, or an Adverse
Grantor Event with respect to either Grantor Trust Pool, under the
Pooling and Servicing Agreement; and
(B) both of the following conditions would be satisfied if
the Mortgage Loan Seller were to repurchase or replace only the
Affected Loans and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four
calendar quarters immediately preceding the repurchase or
replacement is not less than the least of (A) 0.10x below the
debt service coverage ratio for the Cross-Collateralized Group
(including the Affected Loan(s)) set forth in Appendix B to the
Prospectus Supplement, (B) the debt service coverage ratio for
the Cross-Collateralized Group (including the Affected Loan(s))
for the four preceding calendar quarters preceding the repurchase
or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed
Loans is not greater than the greatest of (A) the loan-to-value
ratio, expressed as a whole number (taken to one decimal place),
for the Cross-Collateralized Group (including the Affected
Loan(s)) set forth in Appendix B to the Prospectus Supplement
plus 10%, (B) the loan-to-value ratio for the
Cross-Collateralized Group (including the Affected Loan(s)) at
the time of repurchase or replacement, and (C) 75%.
The determination of the applicable Master Servicer as to whether
the conditions
set forth above have been satisfied shall be conclusive and binding
in the
absence of manifest error. The applicable Master Servicer will be
entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in
which case the
Mortgage Loan Seller shall) cause to be delivered, to the
applicable Master
Servicer an Appraisal of any or all of the related Mortgaged
Properties for
purposes of determining whether the condition set forth in clause
(ii) above has
been satisfied, in each case at the expense of the Mortgage Loan
Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan
Seller and the
Controlling Class Representative (such approval not to be
unreasonably withheld
in each case).
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described
in the
preceding paragraph are satisfied, such that the Trust Fund will
continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the
Purchaser agree
to forbear from enforcing any remedies against the other's Primary
Collateral
but each is permitted to exercise remedies against the Primary
Collateral
10
securing its respective Mortgage Loans, including with respect to
the Trustee,
the Primary Collateral securing the Affected Loan(s) still held by
the Trustee,
so long as such exercise does not impair the ability of the
Mortgage Loan Seller
to exercise its remedies against its Primary Collateral. If the
exercise of
remedies by one such party would impair the ability of the other
such party to
exercise its remedies with respect to the Primary Collateral
securing the
Affected Loan or the Other Crossed Loans, as the case may be, held
by the other
such party, then both parties shall forbear from exercising such
remedies unless
and until the Mortgage Loan Documents evidencing and securing the
relevant
Mortgage Loans can be modified in a manner that complies with this
Agreement to
remove the threat of impairment as a result of the exercise of
remedies. Any
reserve or other cash collateral or letters of credit securing any
of the
Cross-Collateralized Loans shall be allocated between the Mortgage
Loans in
accordance with the Mortgage Loan Documents, or otherwise on a pro
rata basis
based upon their outstanding Stated Principal Balances. All other
terms of the
Mortgage Loans shall remain in full force and effect, without any
modification
thereof. The Borrowers set forth on Schedule V to the Pooling and
Servicing
Agreement are intended third-party beneficiaries of the provisions
set forth in
this paragraph and the preceding paragraph. The provisions of this
paragraph and
the preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Borrower's consent.
All costs and expenses incurred by the Trustee and the applicable
Master Servicer with respect to any Cross-Collateralized Group
pursuant to the
preceding paragraph shall be included in the calculation of
Purchase Price for
the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as
contemplated by
this Section 5, upon direction by the applicable Master Servicer,
the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage File
and a
certification to the effect that such Replacement Mortgage Loan
satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all of
the
requirements of the definition of "Qualifying Substitute Mortgage
Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself a
Replacement
Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or
Material Document Defect, the affected Mortgage Loan will be
required to be
repurchased as contemplated hereby. Monthly Payments due with
respect to each
Replacement Mortgage Loan (if any) after the related date of
substitution, and
Monthly Payments due with respect to each corresponding Deleted
Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to the
related date
of substitution, shall be part of the Trust Fund. Monthly Payments
due with
respect to each Replacement Mortgage Loan (if any) on or prior to
the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date
of
substitution, shall not be part of the Trust Fund and are to be
remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly
following
receipt.
If any Mortgage Loan is to be repurchased or replaced by the
Mortgage
Loan Seller as contemplated by this Section 5, upon direction by
the applicable
Master Servicer, the Mortgage Loan Seller shall amend the Mortgage
Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the
substitution of the related Replacement Mortgage
11
Loan(s) and deliver or cause the delivery of such amended Mortgage
Loan Schedule
to the parties to the Pooling and Servicing Agreement. Upon any
substitution of
one or more Replacement Mortgage Loans for a Deleted Mortgage Loan,
such
Replacement Mortgage Loan(s) shall become part of the Trust Fund
and be subject
to the terms of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage
Loan
repurchased or replaced by the related Mortgage Loan Seller as
contemplated by
this Section 5 has been deposited in the account designated
therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and
further, if
applicable, upon receipt by the Purchaser (or the Trustee or a
Custodian
appointed thereby) of the Mortgage File for each Replacement
Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together with
any
certifications and/or opinions required pursuant to this Section 5
to be
delivered by the Mortgage Loan Seller, the Purchaser (or the
Trustee) shall (i)
release or cause the release of the Mortgage File and any
Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the
Deleted Mortgage
Loan to the Mortgage Loan Seller or its designee and (ii) execute
and deliver
such instruments of release, transfer and/or assignment, in each
case without
recourse, as shall be provided to it and are reasonably necessary
to vest in the
Mortgage Loan Seller or its designee the ownership of the Deleted
Mortgage Loan,
and the Purchaser (or the applicable Master Servicer on its behalf)
shall notify
the affected Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such
repurchase or
substitution by the Mortgage Loan Seller, each of the applicable
Master Servicer
and the Special Servicer (or other servicing agent for the
Purchaser) shall
deliver to the Mortgage Loan Seller or its designee any portion of
the related
Servicing File, together with any Escrow Payments, Reserve Funds
and Additional
Collateral, held by or on behalf of such Master Servicer or the
Special Servicer
(or other servicing agent for the Purchaser), as the case may be,
with respect
to the Deleted Mortgage Loan, in each case at the expense of the
Mortgage Loan
Seller.
(d) It is understood and agreed that the obligations of the
Mortgage
Loan Seller set forth in this Section 5 to cure a Material Breach
or a Material
Document Defect, or to repurchase or replace the related Defective
Mortgage
Loan(s), constitute the sole remedies available to the Purchaser,
the
Certificateholders or the Trustee on behalf of the
Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage
Loan.
Notwithstanding the foregoing, to the extent (but only to the
extent)
that (A) the Mortgage Loan Seller represents in the representation
and warranty
set forth in the final sentence of paragraph 23 or the
representation and
warranty set forth in the final sentence of paragraph 29 of Exhibit
C attached
hereto that the Borrower under a Mortgage Loan is required to pay,
or that the
lender is entitled to charge the Borrower for, a cost or expense
described in
such sentence, (B) such representation and warranty is untrue with
respect to
such cost or expense, (C) the Purchaser actually incurs such cost
or such
expense, (D) the Purchaser (or a Person acting on behalf of the
Purchaser)
exercises efforts consistent with the Servicing Standard and the
related
Mortgage Loan Documents to collect such cost or expense from the
Borrower and
(E) the Borrower does not pay such cost or expense at or before the
conclusion
of the efforts described in the preceding clause (D), then the
Mortgage Loan
Seller hereby covenants and agrees (it
12
being the intention of the parties that all, and not less than all,
of the
conditions described in the preceding clauses (A), (B), (C), (D)
and (E) shall
be precedent to such covenant and agreement) to pay such cost or
expense within
90 days following a direction by the Purchaser (or a Person acting
on behalf of
the Purchaser) to do so. Also notwithstanding the foregoing, the
remedy
described in the immediately preceding sentence shall constitute
the sole remedy
available to the Purchaser, the Certificateholders or the Trustee
on behalf of
the Certificateholders with respect to any breach of any
representation
described in clause (A) of the immediately preceding sentence, the
Mortgage Loan
Seller shall not otherwise have any obligation to cure such a
breach and the
Mortgage Loan Seller shall not have any obligation to repurchase or
replace the
affected Mortgage Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Sidley Austin LLP, 787
Seventh
Avenue, New York, New York 10019 at 10:00 a.m., New York City time,
on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be true
and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
reasonably
acceptable to the Purchaser and, in the case of the Pooling and
Servicing
Agreement (insofar as such Agreement affects the obligations of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller, shall
be duly
executed and delivered by all signatories as required pursuant to
the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Purchaser or its designee, all documents, funds and other
assets
required to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) The result of any examination of the Mortgage Files for, and
any
other documents and records relating to, the Mortgage Loans
performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with
in all material respects, and the Mortgage Loan Seller shall have
the
ability to comply with all terms and conditions and perform all
duties and
obligations required to be complied with or performed by it after
the
Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase
price
for the Mortgage Loans, as contemplated by Section 1; and
13
(viii) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees to use their commercially reasonable
best
efforts to perform their respective obligations hereunder in a
manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 7. Closing Documents. The Purchaser or its designee shall
have
received all of the following Closing Documents, in such forms as
are agreed
upon and acceptable to the Purchaser, the Underwriters, the Initial
Purchasers
and the Rating Agencies (collectively, the "Interested Parties"),
and upon which
the Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the Mortgage
Loan Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of
the
Mortgage Loan Seller, in his or her individual capacity, and dated
the
Closing Date, and upon which the Interested Parties may rely,
attaching
thereto as exhibits (A) the resolutions of the board of directors
of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's
entering into
the transactions contemplated by this Agreement and the
Indemnification
Agreement, and (B) the organizational documents of the Mortgage
Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage
Loan
Seller issued by the Comptroller of the Currency of the United
States not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v) A Certificate of the Mortgage Loan Seller substantially in the
form of Exhibit D-2 hereto, executed by an executive officer of the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated
the
Closing Date, and upon which the Interested Parties may rely;
(vi) The written opinion of in-house counsel for the Mortgage Loan
Seller, dated the Closing Date and addressed to the Interested
Parties and
the Trustee, which opinion shall be substantially in the form of
Exhibit
D-3A hereto (with such additions, deletions or modifications as may
be
required by either Rating Agency);
(vii) A written opinion of Sidley Austin Brown & Wood LLP,
special
counsel for the Mortgage Loan Seller, dated the Closing Date and
addressed
to the Interested Parties and the Trustee, which opinion shall be
substantially in the form of Exhibit D-3B hereto (with such
additions,
deletions or modifications as may be required by either Rating
Agency);
14
(viii) A letter from Andrews Kurth LLP, special counsel for the
Mortgage Loan Seller, dated the Closing Date and addressed to
BSCMSI and
the Underwriters, which letter shall be substantially in the form
of
Exhibit D-3C hereto;
(ix) copies of all other opinions rendered by counsel for the
Mortgage
Loan Seller to the Rating Agencies in connection with the
transactions
contemplated by this Agreement, including, but not limited to, with
respect
to the characterization of the transfer of the Mortgage Loans
hereunder as
a true sale, with each such opinion to be addressed to the other
Interested
Parties and the Trustee or accompanied by a letter signed by such
counsel
stating that the other Interested Parties and the Trustee may rely
on such
opinion as if it were addressed to them as of date thereof;
(x) One or more comfort letters from Deloitte & Touche LLP,
certified
public accountants, dated the date of any preliminary Prospectus
Supplement, the Prospectus Supplement and the Memorandum,
respectively, and
addressed to, and in form and substance acceptable to, the
Interested
Parties (other than the Rating Agencies), stating in effect that,
using the
assumptions and methodology used by BSCMSI or the Underwriters, as
applicable, all of which shall be described in such letters, they
have
recalculated such numbers and percentages relating to the Mortgage
Loans
set forth in any preliminary Prospectus Supplement, the Prospectus
Supplement and the Memorandum, compared the results of their
calculations
to the corresponding items in any preliminary Prospectus
Supplement, the
Prospectus Supplement and the Memorandum, respectively, and found
each such
number and percentage set forth in any preliminary Prospectus
Supplement,
the Prospectus Supplement and the Memorandum, respectively, to be
in
agreement with the results of such calculations; and
(xi) Such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require.
SECTION 8. Costs. Whether or not this Agreement is terminated, the
costs and expenses incurred in connection with the transactions
herein
contemplated shall be allocated pursuant to the terms of a
settlement statement
dated the Closing Date.
SECTION 9. Notices. All demands, notices and communications
hereunder
shall be in writing and shall be deemed to have been duly given if
personally
delivered to or mailed, by registered mail, postage prepaid, by
overnight mail
or courier service, or transmitted by facsimile and confirmed by
similar mailed
writing, if to the Purchaser, addressed to the Purchaser at 383
Madison Avenue,
New York, New York 10179, Attention: J. Christopher Hoeffel, Senior
Managing
Director, Commercial Mortgage Department (with copies to the
attention of Joseph
T. Jurkowski, Jr., Managing Director, Legal Department), or such
other address
as may be designated by the Purchaser to the Mortgage Loan Seller
in writing,
or, if to the Mortgage Loan Seller, addressed to the Mortgage Loan
Seller at 225
West Wacker Drive, Suite 2550, Chicago, Illinois 60606, Attention:
Brigid
Mattingly (with copies to the attention of Robert F. Darling, Esq.,
Wells Fargo
Bank, National Association, 633 Folsom Street, 7th Floor, MAC
A0149-075, San
Francisco, California 94107), or such other address as may be
designated by the
Mortgage Loan Seller to the Purchaser in writing.
15
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated
except by a
writing signed by a duly authorized officer of the party against
whom
enforcement of such change, waiver, discharge or termination is
sought to be
enforced. This Agreement may be executed in any number of
counterparts, each of
which shall for all purposes be deemed to be an original and all of
which shall
together constitute but one and the same instrument. This Agreement
will inure
to the benefit of and be binding upon the parties hereto and their
respective
successors and assigns, and no other person will have any right or
obligation
hereunder. Notwithstanding any contrary provision of this Agreement
or the
Pooling and Servicing Agreement, the Purchaser shall not consent to
any
amendment of the Pooling and Servicing Agreement which will
increase the
obligations of, or otherwise adversely affect, the Mortgage Loan
Seller, without
the consent of the Mortgage Loan Seller.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Mortgage Loan Seller delivered pursuant hereto,
shall remain
operative and in full force and effect and shall survive delivery
of the
Mortgage Loans by the Mortgage Loan Seller to BSCMSI and by BSCMSI
to the Trust,
notwithstanding any restrictive or qualified endorsement or
assignment in
respect of any Mortgage Loan.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or is
held to be void or unenforceable shall be ineffective to the extent
of such
prohibition or unenforceability without invalidating the remaining
provisions
hereof. Any part, provision, representation, warranty or covenant
of this
Agreement that is prohibited or is held to be void or unenforceable
in any
particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or
unenforceability in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 13. Governing Law; Consent to Jurisdiction; Waiver of Trial
by
Jury. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED,
MADE AND TO
BE PERFORMED ENTIRELY IN SAID STATE. TO THE FULLEST EXTENT
PERMITTED UNDER
APPLICABLE LAW, EACH OF THE PURCHASER AND THE MORTGAGE LOAN SELLER
HEREBY
IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
AND FEDERAL
COURTS SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH
RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES
THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST
POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; (IV) AGREES THAT A
FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN
16
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY
LAW; AND (V) WAIVES TO THE EXTENT PERMITTED BY APPLICABLE LAW ALL
RIGHT TO TRIAL
BY JURY IN ANY ACTION, CLAIM, SUIT, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) RELATING TO OR ARISING OUT OF
THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and
take such
further actions as any other party hereto may, from time to time,
reasonably
request in order to effectuate the purposes and to carry out the
terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of
the
Mortgage Loan Seller under this Agreement shall not be assigned by
the Mortgage
Loan Seller without the prior written consent of the Purchaser,
except that any
person into which the Mortgage Loan Seller may be merged or
consolidated, or any
person resulting from any merger, conversion or consolidation to
which the
Mortgage Loan Seller is a party, or any person succeeding to all or
substantially all of the business of the Mortgage Loan Seller,
shall be the
successor to the Mortgage Loan Seller hereunder. In connection with
its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals
hereto,
BSCMSI is expressly authorized to assign its rights under this
Agreement, in
whole or in part, to the Trustee for the benefit of the registered
holders and
beneficial owners of the Certificates. To the extent of any such
assignment, the
Trustee, for the benefit of the registered holders and beneficial
owners of the
Certificates, shall be the Purchaser hereunder. Subject to the
foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable
by the
Mortgage Loan Seller and the Purchaser, and their respective
successors and
permitted assigns.
SECTION 16. Information. The Mortgage Loan Seller shall provide the
Purchaser with such information about itself, the Mortgage Loans
and the
underwriting and servicing procedures applicable to the Mortgage
Loans as is (i)
customary in commercial mortgage loan securitization transactions,
(ii) required
by a Rating Agency or a governmental agency or body or (iii)
reasonably
requested by the Purchaser for use in a public or private
disclosure document.
SECTION 17. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that
certain groups
of Mortgage Loans are, in the case of each such particular group of
Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted
and cross-collateralized, if identified as such on the Mortgage
Loan Schedule.
For purposes of reference, the Mortgaged Property that relates or
corresponds to
any of the Mortgage Loans referred to in this Section 17 shall be
the property
identified in the Mortgage Loan Schedule as corresponding thereto.
The
provisions of this Agreement, including, without limitation, each
of the
representations and warranties set forth in Exhibit C hereto and
each of the
capitalized terms used herein but defined in the Pooling and
Servicing
Agreement, shall be interpreted in a manner consistent with this
Section 17. In
addition, if there exists with respect to any Cross-Collateralized
Group only
one original of any document referred to in the definition of
"Mortgage File" in
the Pooling and Servicing Agreement and covering all the Mortgage
Loans in such
Cross-Collateralized Group, the inclusion of the original of such
document in
the Mortgage File for any of the Mortgage Loans
17
constituting such Cross-Collateralized Group shall be deemed an
inclusion of
such original in the Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire
agreement and
understanding of the parties with respect to the matters addressed
herein, and
this Agreement supersedes any prior agreements and/or
understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused this Agreement to be duly executed by their respective
officers as of the
day and year first above written.
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
-------------------------------------
Name:
Brigid M. Mattingly
Title: Managing Director
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By:
-------------------------------------
Name:
Richard A. Ruffer Jr.
Title: Vice President
WFB MLPA
EXHIBIT A
SCHEDULE OF WELLS FARGO BANK POOLED MORTGAGE LOANS
Ex. A-1
SELLER
LOAN
ID
LOAN NUMBER
PROPERTY NAME
GROUP
ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
4
510904353
RLJ Hotel Portfolio
1
Various
4-a
510904353.01
Marriott - Denver, CO
10345 Park Meadows Drive
4-b
510904353.02
Marriott - Bedford Park, IL
6520 S Cicero Avenue
4-c
510904353.03
Renaissance - Plantation, FL
1230 Pine Island Road
4-d
510904353.04
Marriott - Austin, TX
4415 S IH 35
4-e
510904353.05
Hilton Garden Inn - Bedford Park, IL
6530 S Cicero Avenue
4-f
510904353.06
Residence Inn - Plantation, FL
130 N University Drive
4-g
510904353.07
Renaissance - Broomfield, CO
500 Flatiron Boulevard
4-h
510904353.08
Courtyard - Salt Lake City, UT
4843 W Douglas Corrigan
4-i
510904353.09
Residence Inn Galleria - Houston, TX
2500 McCue Road
4-j
510904353.10
Hampton Inn - Bedford Park, IL
6540 S Cicero Avenue
4-k
510904353.11
Marriott - Pontiac, MI
3600 Centerpoint Parkway
4-l
510904353.12
Holiday Inn Express - Bedford Park, IL
6500 S Cicero Avenue
4-m
510904353.13
Courtyard - Austin, TX
9409 Stonelake Boulevard
4-n
510904353.14
Springhill Suites - Austin, TX
4501 S IH 35
4-o
510904353.15
Residence Inn - Round Rock, TX
2505 S IH 35
4-p
510904353.16
Residence Inn - Austin, TX
3713 Tudor Boulevard
4-q
510904353.17
Courtyard - Tampa, FL
10152 Palm River Road
4-r
510904353.18
Residence Inn - Pontiac, MI
3333 Centerpoint Parkway
4-s
510904353.19
Residence Inn - Schaumburg, IL
1610 McConnor Parkway
4-t
510904353.20
Sleep Inn - Bedford Park, IL
6650 S Cicero Avenue
4-u
510904353.21
Springhill Suites - Schaumburg, IL
1550 McConnor Parkway
4-v
510904353.22
Fairfield Inn & Suites - Brandon, FL
10150 Palm River Road
4-w
510904353.23
Courtyard - Fort Wayne, IN
1619 W Washington Center Road
4-y
510904353.24
Courtyard - Louisville, KY
10200 Champion Farms Drive
4-z
510904353.25
Courtyard - Merrillville, IN
7850 Rhode Island Avenue
4-aa
510904353.26
Residence Inn - Louisville, CO
845 Coal Creek Circle
4-ab
510904353.27
Residence Inn - Fishers, IN
9765 Crosspoint Boulevard
4-ac
510904353.28
Courtyard - Sugar Land, TX
12655 Southwest Freeway
4-ad
510904353.29
Residence Inn - Sugar Land, TX
12703 Southwest Freeway
4-ae
510904353.30
Fairfield Inn & Suites - Merrillville, IN
8275 Georgia Street
4-af
510904353.31
Courtyard - Mesquite, TX
2300 Highway 67
4-ag
510904353.32
Residence Inn - Merrillville, IN
8018 Delaware Place
4-ah
510904353.33
Courtyard - Mishawaka, IN
4825 N Main Street
4-ai
510904353.34
Courtyard - Pontiac, MI
3555 Centerpoint Parkway
4-aj
510904353.35
Residence Inn II - Austin, TX
4537 South IH-35
4-ak
510904353.36
Hampton Inn - Merrillville, IN
8353 Georgia Street
4-al
510904353.37
Holiday Inn Express - Merrillville, IN
8375 Georgia Street
4-am
510904353.38
Courtyard - Valparaiso, IN
2301 East Morthland Drive
4-an
510904353.39
Fairfield Inn & Suites - Austin, TX
4525 S IH 35
4-ao
510904353.40
Holiday Inn Select - Grand Rapids, MI
3063 Lake Eastbrook Boulevard
4-ap
510904353.41
Residence Inn - South Bend, IN
716 North Niles Avenue
4-aq
510904353.42
Courtyard - Benton Harbor, MI
1592 Mall Drive
4-ar
510904353.43
Fairfield Inn & Suites - Valparaiso, IN
2101 E Morthland Drive
5
310904532
DRA Capital Center II & III
1
11000-11090 White Rock Road
8
510904546
First Industrial Portfolio
1
Various
8-a
510904546.01
2850 Colonades Court
2850 Colonades Court
8-b
510904546.02
2925 Courtyards Drive
2925 Courtyards Drive
8-c
510904546.03
3075 Northwoods Circle
3075 Northwoods Circle
8-d
510904546.04
835 Franklin Court
835 Franklin Court
8-e
510904546.05
2755 Northwoods Parkway
2755 Northwoods Parkway
8-f
510904546.06
2775 Northwoods Parkway
2775 Northwoods Parkway
8-g
510904546.07
841 Livingston Court
841 Livingston Court
8-h
510904546.08
3155 Northwoods Parkway
3155 Northwoods Parkway
8-i
510904546.09
2725 Northwoods Parkway
2725 Northwoods Parkway
8-j
510904546.10
825 Franklin Court
825 Franklin Court
8-k
510904546.11
805 Franklin Court
805 Franklin Court
8-l
510904546.12
3100 Northwoods Place
3100 Northwoods Place
8-m
510904546.13
840 Franklin Court
840 Franklin Court
8-n
510904546.14
2915 Courtyards Drive
2915 Courtyards Drive
8-o
510904546.15
810 Franklin Court
810 Franklin Court
8-p
510904546.16
3175 Northwoods Parkway
3175 Northwoods Parkway
8-q
510904546.17
3055 Northwoods Circle
3055 Northwoods Circle
8-r
510904546.18
3040 Northwoods Parkway
3040 Northwoods Parkway
8-s
510904546.19
811 Livingston Court
811 Livingston Court
8-t
510904546.20
2975 Courtyards Drive
2975 Courtyards Drive
8-u
510904546.21
821 Livingston Court
821 Livingston Court
8-v
510904546.22
830 Franklin Court
830 Franklin Court
8-w
510904546.23
2995 Courtyards Drive
2995 Courtyards Drive
21
310904520
3300 75th Avenue
1
3300 75th Avenue
23
310904315
136 East South Temple
1
136 East South Temple
27
310904522
Iron Horse Shopping Center
1
685, 593 and 589 East Prater Way
33
310902822
Knollwood Village Apartments
2
2130 East Hill Drive
42
310904004
1522 K Street
1
1522 K Street, NW
47
310904163
Imperial Apartments
2
1722, 1700, 1688, 1697, 1719, 1813, 1925
Imperial Dr. and 1818, 1924 Sunset Drive
49
310904472
KBS-Sabal Pavilion
1
3620 Queen Palm Drive
58
310904531
Carefree Marketplace
1
36889 Tom Darlington Drive
71
310904282
Embassy Plaza Retail Center
1
6050-6140 Lankershim Boulevard
84
510904352
Courtyard San Antonio Airport
1
80 N.E. Loop 410
86
310904256
Hampton Inn Venice
1
881 Venetia Bay Boulevard
92
310904440
Golden Eagle Center
1
2-80 East Washington Street
95
610904443
Nohl Plaza Orange County
1
1440-1628 E. Lincoln Ave. and 2634-2756
N. Tustin St.
97
310903863
UTEX Portfolio
1
Various
97-a
310903863A
UTEX - Old Katy Road
10810 Old Katy Road
97-b
310903863B
UTEX - UTEX Drive
605 UTEX Drive
97-c
310903863C
UTEX - Industrial Court
116-A Industrial Court
97-d
310903863D
UTEX - Market Ave
1104 Market Ave
98
310903162
Inverness Shopping Plaza
1
5510-5590 W. Oakland Park Blvd
102
310903919
Fiesta Mercado Shopping Center
1
Interstate 10 and South Sixth Avenue
103
310904314
Hampton Inn & Suites Tempe
1
1429 N. Scottsdale Rd
106
310904334
Amarillo Tower
1
701 S. Taylor St.
108
310904307
1380 Howard Street
1
1380 Howard Street
110
310904401
Petaluma Theatre District Garage Retail
1
109-169 C Street, 165 1st Street, and
111-161 2nd Street
111
310903753
Fairfield Inn & Suites, (Mount Laurel, NJ)
1
350 Century Parkway
118
310904461
2140-2192 Bering Drive
1
2140-2192 Bering Drive
121
310904468
Pell City Marketplace
1
901-1027 Martin Street South
123
410904236
Schwab/Barth - Rite-Aid Los Angeles
1
4633 Santa Monica Blvd.
124
410904237
Schwab/Barth - Rite-Aid San Diego
1
4077 Governor Drive
127
310903558
Corinthian College - ACCO
II
1
1819 S. Excise Avenue
128
310904464
Sportsman's Warehouse- Woodbury
1
9895 Hudson Place
131
310904515
JC Penney - CO
1
955 South Hover Street
137
310904600
Mill Plain Center
1
705 SE Park Crest Avenue
142
310904299
White River Mountain Apartments
2
115 White River Mountain Blvd
143
310902869
Indigo Lakes Holiday Inn Express
1
2620 International Speedway Boulevard
144
310904511
Carbondale Square
1
1011-1091 Highway 133
146
310904479
Sherwood Glen Apartments
2
8825 Hickman Rd.
147
310904313
Huntington Plaza Shopping Center
1
1800 N Jefferson Street
148
310904300
Valley Heights Independent Living
2
925 Freedom Blvd.
151
310904210
1399 Roxbury Drive Office Retail
1
1399 S. Roxbury Drive
154
310904339
Quality Inn Homestead Park
1
2036 Overland Avenue
155
610904494
Savannah Apartments
2
8800 Broadway St.
157
310904372
Publix Jacksonville
1
10500 San Jose Boulevard
159
310904373
Publix Orange Park
1
950 Blanding Blvd.
164
310904358
New Brighton Apartments
2
1260 Brighton Ave
165
310904360
Teaberry Greene Townhomes
2
9 Warwick Lane
169
310903536
FedEx Ground Distribution Building - Seaford
1
161 Venture Drive
171
410904534
The Crossing, Phase II
1
196 Nut Tree Parkway
173
310903504
Hampton Inn & Suites - Salt Lake City Airport
1
307 No. Admiral Byrd Road
178
310904390
Tessar Professional Building
1
1099 Helmo Avenue North
180
310903740
Burbank Retail Stores
1
300-310 N. San Fernando Road
182
410903095
The Saxe Building
2
2402 NE 65th Street
183
410904082
220 Labs Industrial Buildings
1
2321 & 2375 Third Street
185
410904425
Lake Zurich Self Storage
1
737 South Rand Road
186
410904436
Watt Eighty Industrial
1
3325, 3355, and 3437 Myrtle Avenue
189
310904359
Alameda Park Apartments
2
547-549 Buena Vista Ave.
193
310904387
Silver Shores MHC
1
1257 Overlook Rd
194
410904079
897 Independence Drive
1
897 Independence Drive
195
410904207
Rancho Cucamonga Industrial
1
9141 Arrow Route
196
620904354
Newport Federal - Hualalai Center
1
75-170 Hualalai Road
198
410904232
Seven Star Mobile Home Park
1
170 Koontz Lane
199
410903477
Food-4-Less - Rialto CA
1
1410 W. Foothill Boulevard
200
310904517
JC Penney - MO
1
515 South Westwood Boulevard
201
410904466
Commerce Bank
1
810 West Diamond Avenue
206
410904362
Rice & Maryland Center
1
99 - 137 W. Maryland Avenue
207
410904397
Parker Place Office Building
1
2600 S. Parker Road
208
410904295
Crow Canyon Executive Park
1
1320 El Capitan Drive and 3470 Fostoria Way
210
410904249
3494 East Sunset Road Industrial
1
3494 East Sunset Road
211
620904269
43 Corporate Park
1
43 Corporate Park
215
410904446
Emerald Vista Apartments I
2
8661 Elk Grove Blvd.
222
620904310
Newport Federal - 881 Dover Drive
1
881 Dover Drive
223
620903959
Furniture Room Littleton
1
2550 E. County Line Road
231
410904475
Radisson Professional Building
1
2407 109th Ave NE
232
410904395
Kenosha Retail Center
1
6929 75th Street
235
410903335
San Ramon Plaza
1
2101 Camino Ramon
237
410904524
The Shoppes at the Grove
1
4001 South Shary Road
238
410904438
Pomona Valley Hospital Medical Center
1
286 West Bonita Avenue
239
410904501
Tractor Supply - Waldorf, MD
1
10795 WaWa Lane
240
410904588
Pleasant Ridge
1
4901 Pleasant Ridge Drive
241
410904198
Valley Plaza Retail Center II
1
1807 & 1809 Santa Rita Road and 4301 Valley
Avenue
243
620904071
Arizona 1 Industrial
1
21602, 21616, 21628 North Central Avenue
244
410904418
Walgreens Rochester Retail
1
1280 Walton Blvd.
249
410904514
Dairy Ashford Center
1
13134 Dairy Ashford
251
410904367
Centennial Ridge
1
1629 Lena Court
256
410904292
1460 Westwood Boulevard Office Building
1
1460 Westwood Boulevard
257
410904090
Hibbing Marketplace
1
4100-4114 & 4120-4130
9th Avenue West
259
410904400
Biscayne Apartments
2
150 Northland Drive
261
410904506
Rite Aid - Lansing
1
5032 South Cedar Street
263
410904246
51 Federal Street
1
51 Federal Street
266
410904355
Captains Cove
1
3942 Tyrone Boulevard
270
410904312
West Bend Plaza
1
822 South Main Street
274
410904218
Plaza Center
1
19029 & 19039 Plaza Drive
276
410903933
Country Club Shops
1
1402-1422 N. Highway 7
279
410904391
TnT Mini Storage, Kelseyville
1
3562 Big Valley Road
281
410901480
Fed Ex - Maple Grove
1
7555 Meridian Circle
282
410904227
2340 East Olympic Boulevard
1
2340 East Olympic Boulevard
283
410904172
Castle Rock Storage Haus
1
4633 North Industrial Way
284
410904077
State 50 Shopping Center
1
4835-4953 State Avenue
286
410904188
M&H Properties, LLC
2
2401 90th Street West and 2400 91st Street West
287
410904179
Hollywood Video Tucson
1
1895 W. Valencia Ave
288
410904594
Rite Aid - Farmington
1
131 Wilton Road
289
410904323
Pacific Dental Services - Las Vegas
1
2001 W. Charleston Blvd
290
410904410
Merrydale Apartments
2
238 Merrydale Road
293
620904182
SecurCare Self Storage
1
1545 South Nevada Avenue & 320 East
St. Elmo Avenue
297
410904351
Nevada Federal Credit Union
1
6180 Mae Anne Drive
300
410904435
Main Street Retail
1
203-207 Main Street
301
410903951
Valencia Flex Industrial
1
28382-28386 Constellation Road
P&ICMONTHLY
INTEREST
ORIGINAL
CUT-OFF DATE
DEBT
IO MONTHLY
MORTGAGE
ACCRUAL
ID
CITY
STATE
ZIP CODE
BALANCE
BALANCE
SERVICE
DEBT SERVICE
RATE
BASIS
----------------------------------------------------------------------------------------------------------------------------------
4
Various
Various
Various
75,044,000
75,044,000
399,073
464,208
6.29400%
Actual/360
4-a
Denver
CO
80124
5,886,777
5,886,777
4-b
Bedford Park
IL
60638
4,213,809
4,213,809
4-c
Plantation
FL
33324
3,812,957
3,812,957
4-d
Austin
TX
78744
3,314,173
3,314,173
4-e
Bedford Park
IL
60638
3,220,203
3,220,203
4-f
Plantation
FL
33324
2,998,413
2,998,413
4-g
Broomfield
CO
80021
2,831,453
2,831,453
4-h
Salt Lake City
UT
84116
2,732,142
2,732,142
4-i
Houston
TX
77056
2,647,085
2,647,085
4-j
Bedford Park
IL
60638
2,489,051
2,489,051
4-k
Pontiac
MI
48341
2,075,708
2,075,708
4-l
Bedford Park
IL
60638
1,938,340
1,938,340
4-m
Austin
TX
78759
1,886,392
1,886,392
4-n
Austin
TX
78744
1,813,329
1,813,329
4-o
Round Rock
TX
78664
1,739,008
1,739,008
4-p
Austin
TX
78759
1,725,523
1,725,523
4-q
Tampa
FL
33619
1,596,297
1,596,297
4-r
Pontiac
MI
48341
1,578,952
1,578,952
4-s
Schaumburg
IL
60173
1,557,227
1,557,227
4-t
Bedford Park
IL
60638
1,552,449
1,552,449
4-u
Schaumburg
IL
60173
1,522,134
1,522,134
4-v
Brandon
FL
33619
1,514,322
1,514,322
4-w
Fort Wayne
IN
46818
1,460,270
1,460,270
4-y
Louisville
KY
40241
1,420,530
1,420,530
4-z
Merrillville
IN
46410
1,374,756
1,374,756
4-aa
Louisville
CO
80027
1,267,635
1,267,635
4-ab
Fishers
IN
46256
1,253,230
1,253,230
4-ac
Sugar Land
TX
77477
1,240,597
1,240,597
4-ad
Sugar Land
TX
77477
1,127,621
1,127,621
4-ae
Merrillville
IN
46410
1,124,435
1,124,435
4-af
Mesquite
TX
75150
1,087,847
1,087,847
4-ag
Merrillville
IN
46410
1,069,255
1,069,255
4-ah
Mishawaka
IN
46545
1,056,017
1,056,017
4-ai
Pontiac
MI
48341
1,038,936
1,038,936
4-aj
Austin
TX
78744
1,030,394
1,030,394
4-ak
Merrillville
IN
46410
869,504
869,504
4-al
Merrillville
IN
46410
775,504
775,504
4-am
Valparaiso
IN
46383
705,108
705,108
4-an
Austin
TX
78744
646,253
646,253
4-ao
Grand Rapids
MI
49512
609,590
609,590
4-ap
South Bend
IN
46617
509,797
509,797
4-aq
Benton Harbor
MI
49022
390,230
390,230
4-ar
Valparaiso
IN
46383
340,752
340,752
5
Rancho Cordova
CA
95670
67,700,000
67,700,000
362,506
NAP
6.33750%
Actual/360
8
Various
GA
Various
54,500,000
54,500,000
281,350
NAP
6.11000%
Actual/360
8-a
Norcross
GA
30071
5,000,000
5,000,000
8-b
Norcross
GA
30071
3,650,000
3,650,000
8-c
Norcross
GA
30071
3,400,000
3,400,000
8-d
Marietta
GA
30067
3,280,000
3,280,000
8-e
Norcross
GA
30071
3,150,000
3,150,000
8-f
Norcross
GA
30071
2,925,000
2,925,000
8-g
Marietta
GA
30067
2,870,000
2,870,000
8-h
Norcross
GA
30071
2,800,000
2,800,000
8-i
Norcross
GA
30071
2,725,000
2,725,000
8-j
Marietta
GA
30067
2,600,000
2,600,000
8-k
Marietta
GA
30067
2,375,000
2,375,000
8-l
Norcross
GA
30071
2,150,000
2,150,000
8-m
Marietta
GA
30067
1,970,000
1,970,000
8-n
Norcross
GA
30071
1,950,000
1,950,000
8-o
Marietta
GA
30067
1,925,000
1,925,000
8-p
Norcross
GA
30071
1,890,000
1,890,000
8-q
Norcross
GA
30071
1,800,000
1,800,000
8-r
Norcross
GA
30071
1,775,000
1,775,000
8-s
Marietta
GA
30067
1,700,000
1,700,000
8-t
Norcross
GA
30071
1,400,000
1,400,000
8-u
Marietta
GA
30067
1,175,000
1,175,000
8-v
Marietta
GA
30067
1,030,000
1,030,000
8-w
Norcross
GA
30071
960,000
960,000
21
Landover
MD
20785
24,800,000
24,800,000
130,123
152,053
6.21000%
Actual/360
23
Salt Lake City
UT
84111
23,200,000
23,182,740
145,117
NAP
6.40000%
Actual/360
27
Sparks
NV
89431
20,400,000
20,400,000
105,804
124,131
6.13850%
Actual/360
33
Grand Blanc
MI
48439
18,500,000
18,483,049
106,321
NAP
5.61000%
Actual/360
42
Washington
DC
20005
16,100,000
16,100,000
80,530
95,701
5.92000%
Actual/360
47
Rock Springs
WY
82901
15,000,000
14,959,416
89,355
NAP
5.94000%
Actual/360
49
Tampa
FL
33619
14,700,000
14,700,000
79,240
NAP
6.38000%
Actual/360
58
Carefree
AZ
85377
13,400,000
13,400,000
71,044
82,724
6.27500%
Actual/360
71
North Hollywood
CA
91606
11,225,000
11,225,000
58,469
68,495
6.16500%
Actual/360
84
San Antonio
TX
78216
9,956,000
9,956,000
52,944
61,586
6.29400%
Actual/360
86
Venice
FL
34292
9,800,000
9,800,000
52,661
61,043
6.36000%
Actual/360
92
Petaluma
CA
94952
9,250,000
9,250,000
48,299
56,533
6.18000%
Actual/360
95
Orange
CA
92865
9,000,000
8,992,501
53,844
NAP
5.98000%
Actual/360
97
Various
TX
Various
9,000,000
8,911,892
66,996
NAP
6.48000%
Actual/360
97-a
Houston
TX
77043
5,000,000
4,951,051
97-b
Weimar
TX
78962
2,500,000
2,475,526
97-c
Conroe
TX
77301
1,200,000
1,188,252
97-d
Odessa
TX
79761
300,000
297,063
98
Lauderhill
FL
33313
8,960,000
8,865,979
51,043
NAP
5.53000%
Actual/360
102
Tucson
AZ
85713
8,500,000
8,460,106
50,091
NAP
5.84000%
Actual/360
103
Tempe
AZ
85281
8,200,000
8,178,531
56,112
NAP
6.64500%
30/360
106
Amarillo
TX
79101
8,000,000
8,000,000
42,583
49,518
6.30000%
Actual/360
108
San Francisco
CA
94103
7,700,000
7,694,079
47,561
NAP
6.28000%
Actual/360
110
Petaluma
CA
94952
7,460,000
7,460,000
38,890
45,545
6.17000%
Actual/360
111
Mount Laurel
NJ
08054
7,400,000
7,400,000
35,951
45,756
5.75000%
Actual/360
118
San Jose
CA
95131
7,210,000
7,210,000
37,160
43,692
6.10000%
Actual/360
121
Pell City
AL
35125
7,040,000
7,040,000
37,949
43,943
6.38000%
Actual/360
123
Los Angeles
CA
90029
3,950,000
3,950,000
19,390
23,202
5.81000%
Actual/360
124
San Diego
CA
92112
3,050,000
3,050,000
14,972
17,915
5.81000%
Actual/360
127
Ontario
CA
91761
7,000,000
6,991,188
45,401
NAP
6.07000%
Actual/360
128
Woodbury
MN
55125
7,000,000
6,989,425
43,579
NAP
6.35500%
Actual/360
131
Longmont
CO
80501
6,950,000
6,950,000
36,642
42,747
6.24000%
Actual/360
137
Vancouver
WA
98684
6,500,000
6,494,961
40,022
NAP
6.25000%
Actual/360
142
Hollister
MO
65672
6,400,000
6,395,079
39,531
NAP
6.28000%
Actual/360
143
Daytona Beach
FL
32114
6,500,000
6,392,485
40,227
NAP
5.58000%
Actual/360
144
Carbondale
CO
81623
6,360,000
6,360,000
39,077
NAP
6.23000%
Actual/360
146
Urbandale
IA
50322
6,280,000
6,280,000
32,685
38,300
6.16000%
Actual/360
147
Huntington
IN
46750
6,240,000
6,240,000
34,164
39,359
6.48000%
Actual/360
148
Watsonville
CA
95076
6,200,000
6,190,283
38,054
NAP
6.22000%
Actual/360
151
Los Angeles
CA
90035
6,000,000
6,000,000
30,822
36,282
6.08000%
Actual/360
154
Billings
MT
59102
6,000,000
5,961,514
51,380
NAP
6.23000%
Actual/360
155
Houston
TX
77061
5,950,000
5,945,425
36,751
NAP
6.28000%
Actual/360
157
Jacksonville
FL
32257
5,750,000
5,750,000
29,125
34,456
5.99500%
Actual/360
159
Orange Park
FL
32065
5,650,000
5,650,000
29,215
34,312
6.12000%
Actual/360
164
Albany
CA
94706
5,470,000
5,461,240
33,289
NAP
6.14000%
Actual/360
165
Fishersville
VA
22939
5,300,000
5,295,858
32,530
NAP
6.22000%
Actual/360
169
Seaford
DE
19973
5,200,000
5,153,396
30,296
NAP
5.73500%
Actual/360
171
Vacaville
CA
95687
4,990,000
4,990,000
25,971
30,433
6.16000%
Actual/360
173
Salt Lake City
UT
84116
5,000,000
4,966,132
29,913
NAP
5.98000%
Actual/360
178
Oakdale
MN
55128
4,750,000
4,738,117
29,308
NAP
6.27000%
Actual/360
180
Burbank
CA
91502
4,700,000
4,693,123
29,615
NAP
6.47000%
Actual/360
182
Seattle
WA
98115
4,700,000
4,686,138
26,878
NAP
5.56500%
Actual/360
183
Riverside
CA
92507
4,600,000
4,584,926
28,413
NAP
6.28000%
Actual/360
185
Lake Zurich
IL
60047
4,500,000
4,500,000
23,877
NAP
6.28000%
Actual/360
186
North Highlands
CA
95660
4,500,000
4,500,000
22,908
NAP
6.02500%
Actual/360
189
Alameda
CA
94501
4,340,000
4,333,050
26,412
NAP
6.14000%
Actual/360
193
Traverse City
MI
49684
4,275,000
4,275,000
22,214
26,045
6.15000%
Actual/360
194
Mountain View
CA
94043
4,232,000
4,220,737
25,400
NAP
6.01000%
Actual/360
195
Rancho Cucamonga
CA
91730
4,170,000
4,166,846
25,920
NAP
6.34000%
Actual/360
196
Kailua-Kona
HI
96740
4,000,000
4,000,000
21,630
25,020
6.40000%
Actual/360
198
Carson City
NV
89701
4,000,000
3,993,714
24,525
NAP
6.21000%
Actual/360
199
Rialto
CA
92376
4,000,000
3,968,341
23,496
NAP
5.81000%
Actual/360
200
Poplar Bluff
MO
63901
3,900,000
3,896,977
24,013
NAP
6.25000%
Actual/360
201
Gaithersburg
MD
20878
3,875,000
3,872,085
24,137
NAP
6.36000%
Actual/360
206
St. Paul
MN
55117
3,600,000
3,594,403
22,166
NAP
6.25000%
Actual/360
207
Aurora
CO
80014
3,600,000
3,591,679
24,330
NAP
6.51000%
Actual/360
208
Danville
CA
94526
3,600,000
3,580,899
28,312
NAP
6.06000%
Actual/360
210
Las Vegas
NV
89120
3,550,000
3,550,000
17,997
21,284
6.00000%
Actual/360
211
Irvine
CA
92606
3,500,000
3,500,000
18,926
21,893
6.40000%
Actual/360
215
Elk G
