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, 2007, 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 Moody's
Investors Service, 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, 2007 (the "Pooling
and Servicing
Agreement"), among BSCMSI, as depositor (in such capacity, the
"Depositor"),
Prudential Asset Resources, Inc., as a master servicer (in such
capacity, a
"Master Servicer") and as loan specific special servicer, Wells
Fargo Bank,
National Association, as a master servicer (in such capacity, a
"Master
Servicer"), as certificate administrator (in such capacity, the
"Certificate
Administrator") and as tax administrator (in such capacity, the
"Tax
Administrator"), ARCap Servicing, Inc., as a special servicer (a
"Special
Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee").
Capitalized terms used but not otherwise defined herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement as
in full force and effect on the Closing Date (as defined in Section
1 hereof).
It is anticipated that BSCMSI will transfer the Mortgage Loans to
the Trust
contemporaneously with its purchase of the Mortgage Loans
hereunder.
BSCMSI intends to sell the Registered Certificates to Bear, Stearns
&
Co. Inc. ("BSC") and Morgan Stanley & Co. Incorporated ("Morgan
Stanley"; and
together with BSC in such capacity, the "Underwriters"), pursuant
to an
underwriting agreement, dated the date hereof (the "Underwriting
Agreement"),
among BSCMSI and the Underwriters; and BSCMSI intends to sell the
remaining
Certificates (the "Non-Registered Certificates") to BSC and Morgan
Stanley
(together in such capacities, the "Initial Purchasers") pursuant to
a
certificate purchase
agreement, dated the date hereof (the "Certificate Purchase
Agreement"), among
BSCMSI and the Initial Purchasers. The Registered Certificates are
more fully
described in the prospectus dated September 13, 2006 (the "Base
Prospectus"),
and the supplement to the Base Prospectus dated March 8, 2007 (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 March 29, 2007 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 $368,493,136, subject
to a
variance of plus or minus 5%. The purchase price for the Mortgage
Loans shall
equal the amount set forth as such purchase price in a letter dated
as of March
29, 2007, between the parties to this Agreement, 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
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as set forth herein, all of the right, title and interest of the
Mortgage Loan
Seller in, to and under the Mortgage Loans and all documents
included in the
related Mortgage Files and Servicing Files. Such assignment
includes all
scheduled payments of principal and interest under and proceeds of
the Mortgage
Loans received after their respective Cut-off Dates (other than
scheduled
payments of interest and principal due on or before their
respective Cut-off
Dates, which shall belong and be promptly remitted to the Mortgage
Loan Seller)
together with all documents delivered or caused to be delivered
hereunder with
respect to such Mortgage Loans by the Mortgage Loan Seller
(including all
documents included in the related Mortgage Files and Servicing
Files and any
related Additional Collateral). The Purchaser shall be entitled to
receive all
scheduled payments of principal and interest due on the Mortgage
Loans after
their respective Cut-off Dates, and all other recoveries of
principal and
interest collected thereon after their respective Cut-off Dates
(other than
scheduled payments of principal and interest due on the Mortgage
Loans on or
before their respective Cut-off Dates and collected after such
respective
Cut-off Dates, which shall belong to the Mortgage Loan Seller). In
no event,
however, shall such conveyance and assignment constitute or be
construed as an
assumption by the Purchaser of, in the case of any Mortgage Loan
that is part of
a Mortgage Loan Group, any obligation or liability that is imposed
only on the
initial holder of such Mortgage Loan under the terms of the related
Mortgage
Loan Group Intercreditor Agreement.
After the Mortgage Loan Seller's transfer of the Mortgage Loans to
the
Purchaser, as provided herein, the Mortgage Loan Seller shall not
take any
action inconsistent with the Purchaser's ownership of the Mortgage
Loans. Except
for actions that are the express responsibility of another party
hereunder or
under the Pooling and Servicing Agreement, and further except for
actions that
the Mortgage Loan Seller is expressly permitted to complete
subsequent to the
Closing Date, the Mortgage Loan Seller shall, on or before the
Closing Date,
take all actions required under applicable law to effectuate the
transfer of the
Mortgage Loans by the Mortgage Loan Seller to the Purchaser.
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is intended by the parties hereto to
constitute a
sale by the Mortgage Loan Seller of all the Mortgage Loan Seller's
right, title
and interest in and to such Mortgage Loans and such other related
rights and
property by the Mortgage Loan Seller to the Purchaser. Furthermore,
it is not
intended that such conveyance be a pledge of security for a loan.
If such
conveyance is determined to be a pledge of security for a loan,
however, then:
(i) this Agreement shall constitute a security agreement under
applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to
the Purchaser a
first priority security interest in all of the Mortgage Loan
Seller's right,
title and interest in and to the Mortgage Loans and all amounts
payable to the
holder(s) of the Mortgage Loans in accordance with the terms
thereof (other than
scheduled payments of interest and principal due and payable on
such Mortgage
Loans on or prior to their respective Cut-Off Dates or, in the case
of a
Replacement Pooled Mortgage Loan, on or prior to the related date
of
substitution); (iii) the assignment by 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
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interest under applicable law; and (v) notifications to, and
acknowledgments,
receipts or confirmations from, Persons holding such property,
shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from,
securities intermediaries, bailees or agents (as applicable) of the
Purchaser
for the purpose of perfecting such security interest under
applicable law. The
Mortgage Loan Seller and the Purchaser shall, to the extent
consistent with this
Agreement, take such actions as may be reasonably necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be a perfected security interest of
first priority
under applicable law and will be maintained as such throughout the
term of this
Agreement and the Pooling and Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense,
shall deliver
to and deposit with, or cause to be delivered to and deposited
with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date,
the Mortgage
Note for each Mortgage Loan so assigned, endorsed to the Trustee as
specified in
clause (i) of the definition of "Mortgage File", and, on or before
the date that
is 45 days following the Closing Date, the remainder of the
Mortgage File for
each Mortgage Loan and any Additional Collateral (other than
original Letters of
Credit and Reserve Funds, which shall be transferred to the Trustee
or to the
applicable Master Servicer) for each Mortgage Loan. Notwithstanding
the
preceding sentence, if the Mortgage Loan Seller cannot so deliver,
or cause to
be delivered, as to any Mortgage Loan (exclusive of any Mortgage
Loan that
constitutes a Non-Trust-Serviced Pooled Mortgage Loan), the
original or a copy
of any of the documents and/or instruments referred to in clauses
(ii), (iii),
(vii) and (ix)(A) of the definition of "Mortgage File", with
evidence of
recording or filing (if applicable, and as the case may be)
thereon, solely
because of a delay caused by the public recording or filing office
where such
document or instrument has been delivered for recordation or
filing, as the case
may be, then (subject to the obligation of the Mortgage Loan Seller
to
nonetheless (1) from time to time make or cause to be made
reasonably diligent
efforts to obtain such document or instrument (with such evidence)
if it is not
returned within a reasonable period after the date when it was
transmitted for
recording and (2) deliver such document or instrument to the
Trustee or a
Custodian appointed thereby (if such document or instrument is not
otherwise
returned to the Trustee or such Custodian) promptly upon the
Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or
instrument,
certified by the Mortgage Loan Seller or title agent as being a
copy of the
document deposited for recording or filing and (in the case of such
clause (ii))
accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a
statement from the title agent to the effect that such original
Mortgage has
been sent to the appropriate public recording official for
recordation, has been
delivered to the Trustee on or before the date that is 45 days
following the
Closing Date, the delivery requirements of this subsection shall be
deemed to
have been satisfied as to such missing item, and such missing item
shall be
deemed to have been included in the related Mortgage File, and if
the Mortgage
Loan Seller cannot or does not so deliver, or cause to be
delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of
the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the
definition of
"Mortgage File", because such document or instrument has been
delivered for
recording or filing, as the case may be, then (subject to the
obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or
cause to be
made reasonably diligent efforts to obtain such document or
instrument (with
such evidence) if it is not returned within a reasonable period
after the date
when it was transmitted for recording and (2) deliver such document
or
instrument to the Trustee or a
4
Custodian appointed thereby (if such document or instrument is not
otherwise
returned to the Trustee or such Custodian) promptly upon the
Mortgage Loan
Seller's receipt thereof), so long as a copy of such document or
instrument,
certified by the Mortgage Loan Seller, a title agent or a recording
or filing
agent as being a copy of the document deposited for recording or
filing and
accompanied by an Officer's Certificate of the Mortgage Loan Seller
or a
statement from the title agent that such document or instrument has
been sent to
the appropriate public recording official for recordation (except
that such
certification shall not be required if the Trustee is responsible
for
recordation of such document or instrument under the Pooling and
Servicing
Agreement and the Mortgage Loan Seller has delivered the original
unrecorded
document or instrument to the Trustee on or before the date that is
45 days
following the Closing Date), has been delivered to the Trustee on
or before the
date that is 45 days following the Closing Date, the delivery
requirements of
this subsection shall be deemed to have been satisfied as to such
missing item,
and such missing item shall be deemed to have been included in the
related
Mortgage File. In addition, with respect to each Mortgage Loan
(exclusive of any
Mortgage Loan that constitutes a Non-Trust-Serviced Pooled Mortgage
Loan) under
which any Additional Collateral is in the form of a Letter of
Credit as of the
Closing Date, the Mortgage Loan Seller shall cause to be prepared,
executed and
delivered to the issuer of each such Letter of Credit such notices,
assignments
and acknowledgments as are required under such Letter of Credit to
assign,
without recourse, to the Trustee the Mortgage Loan Seller's rights
as the
beneficiary thereof and drawing party thereunder. Furthermore, with
respect to
each Mortgage Loan, if any, as to which there exists a secured
creditor impaired
property insurance policy or pollution limited liability
environmental
impairment policy covering the related Mortgaged Property, the
Mortgage Loan
Seller shall cause such policy, within a reasonable period
following the Closing
Date, to inure to the benefit of the Trustee for the benefit of the
Certificateholders (if and to the extent that it does not by its
terms
automatically inure to the holder of such Mortgage Loan). For
purposes of this
paragraph, the relevant definition of "Mortgage File" shall be the
definition of
such term set forth in the Pooling and Servicing Agreement as in
full force and
effect on the Closing Date.
(d) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or in the case of a
Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03 of the
Pooling and
Servicing Agreement, after the related date of substitution) and
(ii) the date
on which all recording information necessary to complete the
subject document is
received by the Mortgage Loan Seller, the Mortgage Loan Seller
shall complete
(to the extent necessary), and shall submit for recording or
filing, as the case
may be, including via electronic means, if appropriate, in or with
the
appropriate office for real property records or UCC Financing
Statements, as
applicable, each assignment of Mortgage and assignment of
Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment
of Leases that
has been recorded in the name of MERS or its designee) in favor of
the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in
the Pooling
and Servicing Agreement and each assignment of UCC Financing
Statement (except
with respect to any UCC Financing Statement that has been recorded
in the name
of MERS or its designee) in favor of the Trustee referred to in
clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing
Agreement.
Each such assignment shall reflect that it should be returned by
the public
recording office to the Trustee 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
5
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. With respect to each Mortgage, Assignment of
Leases and UCC
Financing Statement that has been recorded in the name of MERS or
its designee
(if any), the Mortgage Loan Seller shall take all actions as are
necessary to
cause the Trustee to be shown as the owner of such Mortgage,
Assignment of
Leases or UCC Financing Statement on the records of MERS.
(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
6
a secured loan) and to reflect that the Mortgage Loans are no
longer property of
the Mortgage Loan Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling
and Servicing
Agreement. The Mortgage Loan Seller shall, within 15 days of its
discovery or
receipt of notice of any error on the Mortgage Loan Schedule, amend
such
Mortgage Loan Schedule and deliver to the Purchaser or the Trustee,
as the case
may be, an amended Mortgage Loan Schedule; provided that this
sentence shall not
be construed to relieve the Mortgage Loan Seller of any liability
for any
related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with
any examination
of the Mortgage Files for, and any other documents and records
relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the
Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted
or has failed
to conduct any partial or complete examination of any of the
Mortgage Files for,
and/or any of such other documents and records relating to, the
Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law for a breach of the Mortgage Loan Seller's
representations and
warranties made pursuant to Section 4, except as expressly set
forth in Section
5.
SECTION 4. Representations, Warranties and Covenants of the
Mortgage
Loan Seller and the Purchaser.
(a) The Mortgage Loan Seller hereby makes, as of the Closing Date
(and, in connection with any replacement of a Defective Mortgage
Loan (as
defined in Section 4(d) hereof) with one or more Replacement
Mortgage Loans
(also as defined in Section 4(d) hereof), pursuant to Section 5(a)
hereof, as of
the related date of substitution), to and for the benefit of the
Purchaser, each
of the representations and warranties set forth in Exhibit B-1. The
Purchaser
hereby makes, as of the Closing Date, to and for the benefit of the
Mortgage
Loan Seller, each of the representations and warranties set forth
in Exhibit
B-2.
(b) The Mortgage Loan Seller hereby makes, as of the Closing Date
(or
as of such other date specifically provided in the particular
representation or
warranty), to and for the benefit of the Purchaser, each of the
representations
and warranties set forth in Exhibit C.
(c) The Mortgage Loan Seller hereby represents and warrants, as of
the
Closing Date, to and for the benefit of 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
7
Properties and/or the Mortgage Loan Seller contained in the
Prospectus
Supplement complies in all material respects with the applicable
disclosure
requirements of Regulation AB.
(e) For so long as the Trust is subject to the reporting
requirements
of the Exchange Act, the Mortgage Loan Seller hereby agrees to
provide the
Purchaser (or with respect to any Serviced Non-Pooled Pari Passu
Companion Loan
that is deposited into an Other 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
8
Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates that such
Material Document Defect or Material Breach, as the case may be,
will be cured
within an additional 90-day period (such additional 90-day period,
the
"Resolution Extension Period"), then the Mortgage Loan Seller shall
have an
additional period equal to any such applicable Resolution Extension
Period to
complete such correction or cure (or, upon failure to complete such
correction
or cure, to repurchase the affected Mortgage Loan); and provided,
further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated
above (but,
in any event, no later than such repurchase would have to have been
completed),
such Mortgage Loan Seller shall be permitted, during the
three-month period
following the Startup Day for the REMIC Pool that holds the
affected Mortgage
Loan (or during the two-year period following such Startup Day if
the affected
Mortgage Loan is a "defective obligation" within the meaning of
Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying
Substitute
Mortgage Loans and to pay a cash amount equal to the applicable
Substitution
Shortfall Amount. The parties hereto agree that delivery by the
Trustee (or a
Custodian on its behalf) of a certification or schedule of
exceptions to the
Mortgage Loan Seller pursuant to the Pooling and Servicing
Agreement shall not
in and of itself constitute delivery of notice of any Material
Document Defect
or knowledge of the Mortgage Loan Seller of any Material Document
Defect
therein. If any Mortgage Loan is to be repurchased or replaced as
contemplated
by this subsection, the Purchaser or its designee shall be entitled
to designate
the account to which funds in the amount of the applicable Purchase
Price or
Substitution Shortfall Amount (as the case may be) are to be wired.
Any such
repurchase or replacement of a Mortgage Loan shall be on a whole
loan, servicing
released basis. Notwithstanding this subsection, the absence from
the Mortgage
File, (i) on the Closing Date of the Mortgage Note (or a lost note
affidavit and
indemnity with a copy of the Mortgage Note) and (ii) by the first
anniversary of
the Closing Date of originals or copies of the following documents
(without the
presence of any factor that reasonably mitigates such absence,
non-conformity or
irregularity) or of any Specially Designated Mortgage Loan Document
shall be
conclusively presumed to be a Material Document Defect and shall
obligate the
Mortgage Loan Seller to cure such Material Document Defect, or,
failing that,
repurchase the related Mortgage Loan or REO Mortgage Loan, all in
accordance
with the procedures set forth herein: (a) the Mortgage and any
separate
Assignment of Leases as described by clauses (ii) and (iii) of the
definition of
"Mortgage File"; (b) the title insurance policy as described in
clause (viii) of
the definition of "Mortgage File" (or, if the policy has not yet
been issued, an
original or copy of a written commitment "marked-up" at the closing
of such
Mortgage Loan, interim binder or the pro forma title insurance
policy, in each
case evidencing a binding commitment to issue such policy); or (c)
the
assignment of Mortgage (and any separate Assignment of Leases) as
described by
clause (iv) of the definition of "Mortgage File". For purposes of
this
paragraph, the relevant definition of "Mortgage File" shall be the
definition of
such term set forth in the Pooling and Servicing Agreement as in
full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any
Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced
as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect
or breach does
not constitute a Material Document Defect or
9
Material Breach, as the case may be, as to the other Mortgage
Loan(s) that are a
part of such Cross-Collateralized Group (the "Other Crossed Loans")
(without
regard to this paragraph), then the applicable Document Defect or
Breach (as the
case may be) shall be deemed to constitute a Material Document
Defect or
Material Breach (as the case may be) as to each such Other Crossed
Loan for
purposes of the above provisions, and the Mortgage Loan Seller
shall be
obligated to repurchase or replace each such Other Crossed Loan in
accordance
with the provisions above unless, in the case of such Breach or
Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or causes
to be delivered to the Trustee an Opinion of Counsel to the effect
that its
repurchase of only those Mortgage Loans as to which a Material
Breach has
actually occurred without regard to the provisions of this
paragraph (the
"Affected Loan(s)") and the operation of the remaining provisions
of this
Section 5(a) will not result in an Adverse REMIC Event with respect
to any
REMIC Pool, or an Adverse Grantor Event with respect to either
Grantor
Trust Pool, under the Pooling and Servicing Agreement; and
(B) both of the following conditions would be satisfied if the
Mortgage Loan Seller were to repurchase or replace only the
Affected Loans
and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x below the debt service coverage
ratio
for the Cross-Collateralized Group (including the Affected Loan(s))
set forth in Appendix B to the Prospectus Supplement, (B) the debt
service coverage ratio for the Cross-Collateralized Group
(including
the Affected Loan(s)) for the four preceding calendar quarters
preceding the repurchase or replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set
forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including
the
Affected Loan(s)) at the time of repurchase or replacement, and (C)
75%.
The determination of the applicable Master Servicer as to whether
the conditions
set forth above have been satisfied shall be conclusive and binding
in the
absence of manifest error. The applicable Master Servicer will be
entitled to
cause to be delivered, or direct the Mortgage Loan Seller to (in
which case the
Mortgage Loan Seller shall) cause to be delivered, to the
applicable Master
Servicer an Appraisal of any or all of the related Mortgaged
Properties for
purposes of determining whether the condition set forth in clause
(ii) above has
been satisfied, in each case at the expense of the Mortgage Loan
Seller if the
scope and cost of the Appraisal is approved by the Mortgage Loan
Seller and the
Controlling Class Representative (such approval not to be
unreasonably withheld
in each case).
10
With respect to any Defective Mortgage Loan that forms a part of a
Cross-Collateralized Group and as to which the conditions described
in the
preceding paragraph are satisfied, such that the Trust Fund will
continue to
hold the Other Crossed Loans, the Mortgage Loan Seller and the
Purchaser agree
to forbear from enforcing any remedies against the other's Primary
Collateral
but each is permitted to exercise remedies against the Primary
Collateral
securing its respective Mortgage Loans, including with respect to
the Trustee,
the Primary Collateral securing the Affected Loan(s) still held by
the Trustee,
so long as such exercise does not impair the ability of the
Mortgage Loan Seller
to exercise its remedies against its Primary Collateral. If the
exercise of
remedies by one such party would impair the ability of the other
such party to
exercise its remedies with respect to the Primary Collateral
securing the
Affected Loan or the Other Crossed Loans, as the case may be, held
by the other
such party, then both parties shall forbear from exercising such
remedies unless
and until the Mortgage Loan Documents evidencing and securing the
relevant
Mortgage Loans can be modified in a manner that complies with this
Agreement to
remove the threat of impairment as a result of the exercise of
remedies. Any
reserve or other cash collateral or letters of credit securing any
of the
Cross-Collateralized Loans shall be allocated between the Mortgage
Loans in
accordance with the Mortgage Loan Documents, or otherwise on a pro
rata basis
based upon their outstanding Stated Principal Balances. All other
terms of the
Mortgage Loans shall remain in full force and effect, without any
modification
thereof. The Borrowers set forth on Schedule V to the Pooling and
Servicing
Agreement are intended third-party beneficiaries of the provisions
set forth in
this paragraph and the preceding paragraph. The provisions of this
paragraph and
the preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Borrower's consent.
All costs and expenses incurred by the Trustee and the applicable
Master Servicer with respect to any Cross-Collateralized Group
pursuant to the
preceding paragraph shall be included in the calculation of
Purchase Price for
the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as
contemplated by
this Section 5, upon direction by the applicable Master Servicer,
the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage File
and a
certification to the effect that such Replacement Mortgage Loan
satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all of
the
requirements of the definition of "Qualifying Substitute Mortgage
Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself a
Replacement
Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or
Material Document Defect, the affected Mortgage Loan will be
required to be
repurchased as contemplated hereby. Monthly Payments due with
respect to each
Replacement Mortgage Loan (if any) after the related date of
substitution, and
Monthly Payments due with respect to each corresponding Deleted
Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to the
related date
of substitution, shall be part of the Trust Fund. Monthly Payments
due with
respect to each Replacement Mortgage Loan (if any) on or prior to
the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date
of
substitution, shall not be part of the Trust Fund and are to be
remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly
following
receipt.
11
If any Mortgage Loan is to be repurchased or replaced by the
Mortgage
Loan Seller as contemplated by this Section 5, upon direction by
the applicable
Master Servicer, the Mortgage Loan Seller shall amend the Mortgage
Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the
substitution of the related Replacement Mortgage Loan(s) and
deliver or cause
the delivery of such amended Mortgage Loan Schedule to the parties
to the
Pooling and Servicing Agreement. Upon any substitution of one or
more
Replacement Mortgage Loans for a Deleted Mortgage Loan, such
Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject
to the terms
of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage
Loan
repurchased or replaced by the related Mortgage Loan Seller as
contemplated by
this Section 5 has been deposited in the account designated
therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and
further, if
applicable, upon receipt by the Purchaser (or the Trustee or a
Custodian
appointed thereby) of the Mortgage File for each Replacement
Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together with
any
certifications and/or opinions required pursuant to this Section 5
to be
delivered by the Mortgage Loan Seller, the Purchaser (or the
Trustee) shall (i)
release or cause the release of the Mortgage File and any
Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the
Deleted Mortgage
Loan to the Mortgage Loan Seller or its designee and (ii) execute
and deliver
such instruments of release, transfer and/or assignment, in each
case without
recourse, as shall be provided to it and are reasonably necessary
to vest in the
Mortgage Loan Seller or its designee the ownership of the Deleted
Mortgage Loan,
and the Purchaser (or the applicable Master Servicer on its behalf)
shall notify
the affected Borrowers of the transfers of the Deleted Mortgage
Loan(s) and any
Replacement Mortgage Loan(s). In connection with any such
repurchase or
substitution by the Mortgage Loan Seller, each of the applicable
Master Servicer
and the Special Servicer (or other servicing agent for the
Purchaser) shall
deliver to the Mortgage Loan Seller or its designee any portion of
the related
Servicing File, together with any Escrow Payments, Reserve Funds
and Additional
Collateral, held by or on behalf of such Master Servicer or the
Special Servicer
(or other servicing agent for the Purchaser), as the case may be,
with respect
to the Deleted Mortgage Loan, in each case at the expense of the
Mortgage Loan
Seller.
(d) It is understood and agreed that the obligations of the
Mortgage
Loan Seller set forth in this Section 5 to cure a Material Breach
or a Material
Document Defect, or to repurchase or replace the related Defective
Mortgage
Loan(s), constitute the sole remedies available to the Purchaser,
the
Certificateholders or the Trustee on behalf of the
Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage
Loan.
Notwithstanding the foregoing, to the extent (but only to the
extent)
that (A) the Mortgage Loan Seller represents in the representation
and warranty
set forth in the final sentence of paragraph 23 or the
representation and
warranty set forth in the final sentence of paragraph 29 of Exhibit
C attached
hereto that the Borrower under a Mortgage Loan is required to pay,
or that the
lender is entitled to charge the Borrower for, a cost or expense
described in
such sentence, (B) such representation and warranty is untrue with
respect to
such cost or expense, (C) the Purchaser actually incurs such cost
or such
expense, (D) the Purchaser (or a Person acting on
12
behalf of the Purchaser) exercises efforts consistent with the
Servicing
Standard and the related Mortgage Loan Documents to collect such
cost or expense
from the Borrower and (E) the Borrower does not pay such cost or
expense at or
before the conclusion of the efforts described in the preceding
clause (D), then
the Mortgage Loan Seller hereby covenants and agrees (it being the
intention of
the parties that all, and not less than all, of the conditions
described in the
preceding clauses (A), (B), (C), (D) and (E) shall be precedent to
such covenant
and agreement) to pay such cost or expense within 90 days following
a direction
by the Purchaser (or a Person acting on behalf of the Purchaser) to
do so. Also
notwithstanding the foregoing, the remedy described in the
immediately preceding
sentence shall constitute the sole remedy available to the
Purchaser, the
Certificateholders or the Trustee on behalf of the
Certificateholders with
respect to any breach of any representation described in clause (A)
of the
immediately preceding sentence, the Mortgage Loan Seller shall not
otherwise
have any obligation to cure such a breach and the Mortgage Loan
Seller shall not
have any obligation to repurchase or replace the affected Mortgage
Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Sidley Austin LLP, 787
Seventh
Avenue, New York, New York 10019 at 10:00 a.m., New York City time,
on the
Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be true
and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
reasonably
acceptable to the Purchaser and, in the case of the Pooling and
Servicing
Agreement (insofar as such Agreement affects the obligations of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller, shall
be duly
executed and delivered by all signatories as required pursuant to
the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Purchaser or its designee, all documents, funds and other
assets
required to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) The result of any examination of the Mortgage Files for, and
any
other documents and records relating to, the Mortgage Loans
performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with
in all material respects, and the Mortgage Loan Seller shall have
the
ability to comply with all terms and conditions and perform all
duties and
obligations required to be complied with or performed by it after
the
Closing Date;
13
(vi) The Mortgage Loan Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase
price
for the Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees to use their commercially reasonable
best
efforts to perform their respective obligations hereunder in a
manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 7. Closing Documents. The Purchaser or its designee shall
have
received all of the following Closing Documents, in such forms as
are agreed
upon and acceptable to the Purchaser, the Underwriters, the Initial
Purchasers
and the Rating Agencies (collectively, the "Interested Parties"),
and upon which
the Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the Mortgage
Loan Seller;
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of
the
Mortgage Loan Seller, in his or her individual capacity, and dated
the
Closing Date, and upon which the Interested Parties may rely,
attaching
thereto as exhibits (A) the resolutions of the board of directors
of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's
entering into
the transactions contemplated by this Agreement and the
Indemnification
Agreement, and (B) the organizational documents of the Mortgage
Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage
Loan
Seller issued by the 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
14
Parties and the Trustee, which opinion shall be substantially in
the form
of Exhibit D-3B hereto (with such additions, deletions or
modifications as
may be required by either Rating Agency);
(viii) A letter from Andrews Kurth LLP, special counsel for the
Mortgage Loan Seller, dated the Closing Date and addressed to
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
15
Robert F. Darling, Esq., Wells Fargo Bank, National Association,
633 Folsom
Street, 7th Floor, MAC A0149-075, San Francisco, California 94107),
or such
other address as may be designated by the Mortgage Loan Seller to
the Purchaser
in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated
except by a
writing signed by a duly authorized officer of the party against
whom
enforcement of such change, waiver, discharge or termination is
sought to be
enforced. This Agreement may be executed in any number of
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
16
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURTS; (III)
WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN
INCONVENIENT FORUM;
(IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW; AND (V) WAIVES TO THE EXTENT
PERMITTED BY
APPLICABLE LAW ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM,
SUIT, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
RELATING TO OR
ARISING OUT OF THIS AGREEMENT.
SECTION 14. Further Assurances. The Mortgage Loan Seller and the
Purchaser each agrees to execute and deliver such instruments and
take such
further actions as any other party hereto may, from time to time,
reasonably
request in order to effectuate the purposes and to carry out the
terms of this
Agreement.
SECTION 15. Successors and Assigns. The rights and obligations of
the
Mortgage Loan Seller under this Agreement shall not be assigned by
the Mortgage
Loan Seller without the prior written consent of the Purchaser,
except that any
person into which the Mortgage Loan Seller may be merged or
consolidated, or any
person resulting from any merger, conversion or consolidation to
which the
Mortgage Loan Seller is a party, or any person succeeding to all or
substantially all of the business of the Mortgage Loan Seller,
shall be the
successor to the Mortgage Loan Seller hereunder. In connection with
its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals
hereto,
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
17
addition, if there exists with respect to any Cross-Collateralized
Group only
one original of any document referred to in the definition of
"Mortgage File" in
the Pooling and Servicing Agreement and covering all the Mortgage
Loans in such
Cross-Collateralized Group, the inclusion of the original of such
document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such
original in the
Mortgage File for each such Mortgage Loan.
SECTION 18. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire
agreement and
understanding of the parties with respect to the matters addressed
herein, and
this Agreement supersedes any prior agreements and/or
understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, the Mortgage Loan Seller and the Purchaser have
caused this Agreement to be duly executed by their respective
officers as of the
day and year first above written.
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By: /s/ Brigid M. Mattingly
------------------------------------
Name: Brigid M. Mattingly
Title: Managing Director
BEAR STEARNS COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ Christopher Hoeffel
------------------------------------
Name: J. Christopher Hoeffel
Title: Vice President
WFB MLPA
EXHIBIT A
SCHEDULE OF WELLS FARGO BANK POOLED MORTGAGE LOANS
Ex. A-1
ID
CMSA LOAN NO.
CMSA PROPERTY NO.
SELLER LOAN NUMBER
PROPERTY NAME
LOAN GROUP
-----------------------------------------------------------------------------------------------------------------------------
22
22
22-001
310904197
Desert Gardens Apartments
2
25
25
25-001
310905398
Charlotte Marriott SouthPark
1
34
34
34-001
610905699
One Corporate Center I and III
1
38
38
38-001
310905131
Days Inn Mission Valley - Bartell
1
39
39
39-001
310905555
Brook Gardens MHC
2
44
44
44-001
610905562
The Concourse Shopping Center
1
46
46
46-001
310905413
2950 Gallows Road
1
48
48
310904665
Northwood Oaks and Providence Plaza Retail Portfolio
1
48-a
48-001
310904665A
Northwood Oaks
48-b
48-002
310904665B
Providence Plaza
49
49
49-001
310905509
Riverwalk Marketplace
1
51
51
51-001
310904654
Timber Ridge Apartments
2
64
64
64-001
310905399
Courtyard Novato Marin - Sonoma
1
73
73
73-001
310905074
Hampton Inn & Suites of Clear Lake
1
84
84
84-001
310905234
The Bristol Hotel
1
96
96
96-001
310905191
Comfort Inn - Rehoboth Beach
1
98
98
98-001
310905298
Festival Apartments
2
100
100
100-001
310905123
Fremont Court
1
106
106
106-001
310905503
Container Store Vienna
1
107
107
107-001
310905401
Burlington Center Office Building & Crosier Park
Professional Building
1
112
112
112-001
310905316
River Oaks & River Garden Apartments
2
114
114
114-001
310905483
Sleep Inn & Suites Chesapeake
1
117
117
117-001
310905376
A-American Beaumont
1
124
124
124-001
410905423
A-American Sylmar
1
125
125
125-001
310904386
Pepin Woods MHC
2
129
129
129-001
620905367
241 Ridge Street
1
132
132
132-001
410904183
Security SS
1
142
142
142-001
410905502
Walgreens--Keokuk, Iowa
1
144
144
144-001
310904388
Summit Park MHC
2
145
145
410905328
Dollar General II (Pool 4)
1
145-a
145-001
410905328A
Madison
145-b
145-002
410905328B
Leeds
145-c
145-003
410905328C
Talladega
145-d
145-004
410905328D
Moundville
147
147
147-001
410905017
Countryside Village
2
148
148
148-001
410905541
Center Stage at Lumberton
1
149
149
149-001
410905528
2829 - 2855 S. Crenshaw Blvd
1
151
151
151-001
620905225
Casual Cartage - Northeast
1
153
153
153-001
410905237
World Business Center
1
154
154
154-001
410904913
2700 - 2702 Otis Corley
1
156
156
156-001
410904986
Pendleton Shopping Center
1
158
158
158-001
410905176
350 Main Street - Mixed Use
1
162
162
162-001
410905109
Penn Records
1
164
164
164-001
410905016
LaPorte Village MHC
2
165
165
165-001
410905140
Tivoli Plaza
1
166
166
166-001
410905317
Urban Outfitters - Ann Arbor, MI
1
167
167
167-001
310905402
AmericInn of Mankato
1
168
168
410905329
Dollar General II (Pool 5)
1
168-a
168-001
410905329A
Houston
168-b
168-002
410905329B
Katy
168-c
168-003
410905329C
Edcouch
168-d
168-004
410905329D
San Antonio (China Grove)
169
169
169-001
410905474
Tech Industrial
1
172
172
172-001
410905179
University Retail Center
1
173
173
173-001
410904903
Parkridge Apartments
2
174
174
174-001
410905175
Huebner Town Center
1
175
175
175-001
620905224
Casual Cartage - Southwest
1
176
176
410905325
Dollar General II (Pool 1)
1
176-a
176-001
410905325A
Converse
176-b
176-002
410905325B
Harlingen
176-c
176-003
410905325C
Rio Grande City
176-d
