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 Principal
Commercial Funding,
LLC ("PCF"), 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
PCF 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.
PCF 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 PCF, 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 $104,250,000, 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.
The parties acknowledge that a servicing rights purchase agreement
dated as of the date hereof will be executed between the applicable
Master
Servicer for the Mortgage Loans sold hereunder and the Mortgage
Loan Seller,
which agreement shall entitle the Mortgage Loan Seller (as the
present owner of
the Mortgage Loans) to a separate payment from such Master Servicer
in exchange
for the benefit of such Master Servicer becoming the applicable
Master Servicer
of the Mortgage Loans sold hereunder (and any Replacement Pooled
Mortgage Loan
therefor) and also will contemplate the execution and delivery of
the PCF
Primary Servicing Agreement providing for the primary servicing of
the Mortgage
Loans sold hereunder (and any Replacement Pooled Mortgage Loans
therefor) by
Principal Global Investors, LLC (or a successor thereto).
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is intended by the parties hereto to
constitute a
sale by the Mortgage Loan Seller of all the Mortgage Loan Seller's
right, title
and interest in and to such Mortgage Loans and such other related
rights and
property by the Mortgage Loan Seller to the Purchaser. Furthermore,
it is not
intended that such conveyance be a pledge of security for a loan.
If such
conveyance is determined to be a pledge of security for a loan,
however, then:
(i) this Agreement shall constitute a security agreement under
applicable law;
(ii) the Mortgage Loan Seller shall be deemed to have granted to
the Purchaser a
first priority security interest in all of the Mortgage
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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 confirmations
from, Persons
holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, securities
intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose
of perfecting
such security interest under applicable law. The Mortgage Loan
Seller and the
Purchaser shall, to the extent consistent with this Agreement, take
such actions
as may be reasonably necessary to ensure that, if this Agreement
were deemed to
create a security interest in the Mortgage Loans, such security
interest would
be a perfected security interest of first priority under applicable
law and will
be maintained as such throughout the term of this Agreement and the
Pooling and
Servicing Agreement.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant
to Section 2(a) above, the Mortgage Loan Seller, at its expense,
shall deliver
to and deposit with, or cause to be delivered to and deposited
with, the Trustee
or a Custodian appointed thereby, on or before the Closing Date,
the Mortgage
Note for each Mortgage Loan so assigned, endorsed to the Trustee as
specified in
clause (i) of the definition of "Mortgage File", and, on or before
the date that
is 45 days following the Closing Date, the remainder of the
Mortgage File for
each Mortgage Loan and any Additional Collateral (other than
original Letters of
Credit and Reserve Funds, which shall be transferred to the Trustee
or to the
applicable Master Servicer (or a Primary Servicer on its behalf)
for each
Mortgage Loan. Notwithstanding the preceding sentence, if the
Mortgage Loan
Seller cannot so deliver, or cause to be delivered, as to any
Mortgage Loan
(exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled
Mortgage Loan), the original or a copy of any of the documents
and/or
instruments referred to in clauses (ii), (iii), (vii) and (ix)(A)
of the
definition of "Mortgage File", with evidence of recording or filing
(if
applicable, and as the case may be) thereon, solely because of a
delay caused by
the public recording or filing office where such document or
instrument has been
delivered for recordation or filing, as the case may be, then
(subject to the
obligation of the Mortgage Loan Seller to nonetheless (1) from time
to time make
or cause to be made reasonably diligent efforts to obtain such
document or
instrument (with such evidence) if it is not returned within a
reasonable period
after the date when it was transmitted for recording and (2)
deliver such
document or instrument to the Trustee or a Custodian appointed
thereby (if such
document or instrument is not otherwise returned to the Trustee or
such
Custodian) promptly upon the Mortgage Loan Seller's receipt
thereof), so long as
a copy of such document or instrument, certified by the Mortgage
Loan Seller or
title agent as being a copy of the document deposited for recording
or filing
and (in the case of such clause (ii)) accompanied by an Officer's
Certificate of
the Mortgage Loan Seller or a statement from the title agent to the
effect that
such original Mortgage has been sent to the appropriate public
recording
official for recordation, has
4
been delivered to the Trustee on or before the date that is 45 days
following
the Closing Date, the delivery requirements of this subsection
shall be deemed
to have been satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File, and if
the Mortgage
Loan Seller cannot or does not so deliver, or cause to be
delivered, as to any
Mortgage Loan (exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled Mortgage Loan), the original of any of
the documents
and/or instruments referred to in clauses (iv) and (ix)(B) of the
definition of
"Mortgage File", because such document or instrument has been
delivered for
recording or filing, as the case may be, then (subject to the
obligation of the
Mortgage Loan Seller to nonetheless (1) from time to time make or
cause to be
made reasonably diligent efforts to obtain such document or
instrument (with
such evidence) if it is not returned within a reasonable period
after the date
when it was transmitted for recording and (2) deliver such document
or
instrument to the Trustee or a Custodian appointed thereby (if such
document or
instrument is not otherwise returned to the Trustee or such
Custodian) promptly
upon the Mortgage Loan Seller's receipt thereof), so long as a copy
of such
document or instrument, certified by the Mortgage Loan Seller, a
title agent or
a recording or filing agent as being a copy of the document
deposited for
recording or filing and accompanied by an Officer's Certificate of
the Mortgage
Loan Seller or a statement from the title agent that such document
or instrument
has been sent to the appropriate public recording official for
recordation
(except that such certification shall not be required if the
Trustee is
responsible for recordation of such document or instrument under
the Pooling and
Servicing Agreement and the Mortgage Loan Seller has delivered the
original
unrecorded document or instrument to the Trustee on or before the
date that is
45 days following the Closing Date), has been delivered to the
Trustee on or
before the date that is 45 days following the Closing Date, the
delivery
requirements of this subsection shall be deemed to have been
satisfied as to
such missing item, and such missing item shall be deemed to have
been included
in the related Mortgage File. In addition, with respect to each
Mortgage Loan
(exclusive of any Mortgage Loan that constitutes a
Non-Trust-Serviced Pooled
Mortgage Loan) under which any Additional Collateral is in the form
of a Letter
of Credit as of the Closing Date, the Mortgage Loan Seller shall
cause to be
prepared, executed and delivered to the issuer of each such Letter
of Credit
such notices, assignments and acknowledgments as are required under
such Letter
of Credit to assign, without recourse, to the Trustee either the
Mortgage Loan
Seller's (i) rights as the beneficiary thereof and drawing party
thereunder or
(ii) right to receive the proceeds of any draw under such Letter of
Credit (it
being acknowledged that the Mortgage Loan Seller shall not be
required to change
the named beneficiary of such Letter of Credit). In addition, the
Mortgage Loan
Seller hereby agrees that (i) the proceeds of such Letter of Credit
belong to
the Trustee on behalf of the Certificateholders, (ii) it shall
notify, on or
before the Closing Date, the bank issuing such Letter of Credit
that such Letter
of Credit and the proceeds thereof belong to the Trustee, and shall
use
reasonable efforts to obtain within 30 days (but in any event to
obtain within
90 days) following the Closing Date, an acknowledgement thereof by
the bank or a
reissued letter of credit and (iii) it will indemnify the Trust for
any
liabilities, charges, costs, fees or other expenses accruing from
the failure of
the Mortgage Loan Seller to assign to the Trust all rights in and
to such Letter
of Credit as set forth herein, including the right and power to
draw on such
Letter of Credit. Furthermore, with respect to each Mortgage Loan,
if any, as to
which there exists a secured creditor impaired property insurance
policy or
pollution limited liability environmental impairment policy
covering the related
Mortgaged Property, the Mortgage Loan Seller shall cause such
policy, within a
reasonable period following the Closing Date, to inure to the
benefit
5
of the Trustee for the benefit of the Certificateholders (if and to
the extent
that it does not by its terms automatically inure to the holder of
such Mortgage
Loan). For purposes of this paragraph, the relevant definition of
"Mortgage
File" shall be the definition of such term set forth in the Pooling
and
Servicing Agreement as in full force and effect on the Closing
Date.
(d) As soon as reasonably possible, and in any event within 45 days
after the later of (i) the Closing Date (or in the case of a
Replacement Pooled
Mortgage Loan substituted as contemplated by Section 2.03 of the
Pooling and
Servicing Agreement, after the related date of substitution) and
(ii) the date
on which all recording information necessary to complete the
subject document is
received by the Mortgage Loan Seller, the Mortgage Loan Seller
shall complete
(to the extent necessary), and shall submit for recording or
filing, as the case
may be, including via electronic means, if appropriate, in or with
the
appropriate office for real property records or UCC Financing
Statements, as
applicable, each assignment of Mortgage and assignment of
Assignment of Leases
(except, in each case, with respect to any Mortgage or Assignment
of Leases that
has been recorded in the name of MERS or its designee) in favor of
the Trustee
referred to in clause (iv) of the definition of "Mortgage File" in
the Pooling
and Servicing Agreement and each assignment of UCC Financing
Statement (except
with respect to any UCC Financing Statement that has been recorded
in the name
of MERS or its designee) in favor of the Trustee referred to in
clause (ix)(B)
of the definition of "Mortgage File" in the Pooling and Servicing
Agreement.
Each such assignment shall reflect that it should be returned by
the public
recording office to the Trustee following recording, and each such
assignment of
UCC Financing Statement shall reflect that the file copy thereof or
an
appropriate receipt therefor, as applicable, should be returned to
the Trustee
following filing; provided that in those instances where the public
recording
office retains the original assignment of Mortgage or assignment of
Assignment
of Leases the Trustee shall obtain therefrom a copy of the recorded
original. If
the Mortgage Loan Seller receives written notice that any
assignment or other
instrument of transfer with respect to the Mortgage Loans is lost
or returned
unrecorded or unfiled, as the case may be, because of a defect
therein, the
Mortgage Loan Seller shall prepare or cause the preparation of a
substitute
therefor or cure such defect, as the case may be. The Mortgage Loan
Seller shall
be responsible for all reasonable out-of-pocket costs and expenses
associated
with recording and/or filing any and all assignments and other
instruments of
transfer 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
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the Pooling and Servicing Agreement and a Primary Servicing
Agreement or
Sub-Servicing Agreement and except to the extent that any of the
following items
relate to any Mortgage Loan that constitutes a Non-Trust-Serviced
Pooled
Mortgage Loan): (i) originals or copies of all financial
statements, appraisals,
environmental/engineering reports, transaction screens, seismic
assessment
reports, leases, rent rolls, insurance policies and certificates,
major space
leases, legal opinions and tenant estoppels and any other relevant
documents
relating to the origination and servicing of any Mortgage Loan that
are
reasonably necessary for the ongoing administration and/or
servicing of the
applicable Mortgage Loan in the possession or under the control of
the Mortgage
Loan Seller that relate to the Mortgage Loans transferred by it to
the Purchaser
and, to the extent that any original documents are not required to
be a part of
a Mortgage File for any such Mortgage Loan, originals or copies of
all
documents, certificates and opinions in the possession or under the
control of
the Mortgage Loan Seller that were delivered by or on behalf of the
related
Borrowers in connection with the origination of such Mortgage Loans
(provided
that the Mortgage Loan Seller shall not be required to deliver any
attorney-client privileged communication, draft documents or any
documents or
materials prepared by it or its Affiliates for internal uses,
including without
limitation, credit committee briefs or memoranda and other internal
approval
documents); and (ii) all unapplied Reserve Funds and Escrow
Payments in the
possession or under the control of the Mortgage Loan Seller that
relate to the
Mortgage Loans.
(f) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller shall report
its transfer
of the Mortgage Loans to the Purchaser, as provided herein, as a
sale of the
Mortgage Loans to the Purchaser in exchange for the consideration
specified in
Section 1 hereof. In connection with the foregoing, the Mortgage
Loan Seller
shall cause all of its records to reflect such transfer as a sale
(as opposed to
a secured loan) and to reflect that the Mortgage Loans are no
longer property of
the Mortgage Loan Seller.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling
and Servicing
Agreement. The Mortgage Loan Seller shall, within 15 days of its
discovery or
receipt of notice of any error on the Mortgage Loan Schedule, amend
such
Mortgage Loan Schedule and deliver to the Purchaser or the Trustee,
as the case
may be, an amended Mortgage Loan Schedule; provided that this
sentence shall not
be construed to relieve the Mortgage Loan Seller of any liability
for any
related Breach.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Mortgage Loan Seller shall reasonably cooperate with
any examination
of the Mortgage Files for, and any other documents and records
relating to, the
Mortgage Loans, that may be undertaken by or on behalf of the
Purchaser on or
before the Closing Date. The fact that the Purchaser has conducted
or has failed
to conduct any partial or complete examination of any of the
Mortgage Files for,
and/or any of such other documents and records relating to, the
Mortgage Loans,
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law for a breach of the Mortgage Loan Seller's
representations and
warranties made pursuant to Section 4, except as expressly set
forth in Section
5.
SECTION 4. Representations, Warranties and Covenants of the
Mortgage
Loan Seller and the Purchaser.
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(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 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
8
to the Purchaser or its designee and shall inure to the benefit of
the
Purchaser, notwithstanding any restrictive or qualified endorsement
or
assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Mortgage Loan Seller shall, not later than 90 days from
discovery by the Mortgage Loan Seller, or the receipt by the
Mortgage Loan
Seller of notice, of any Material Breach or Material Document
Defect with
respect to any Mortgage Loan (or, if such Material Breach or
Material Document
Defect, as the case may be, related to whether such Mortgage Loan
is, or as of
the Closing Date (or, in the case of a Replacement Mortgage Loan,
as of the
related date of substitution), was a Qualified Mortgage, and
provided that the
Mortgage Loan Seller discovered or received prompt written notice
thereof,
within 90 days after any earlier discovery by the Mortgage Loan
Seller or any
party to the Pooling and Servicing Agreement of such Material
Breach or Material
Document Defect, as the case may be) (such 90-day period, in any
case, the
"Initial Resolution Period"), correct or cure such Material
Document Defect or
Material Breach, as the case may be, in all material respects, or
repurchase the
affected Mortgage Loan at the applicable Purchase Price; provided
that if the
Mortgage Loan Seller certifies to the Trustee in writing (i) that
such Material
Document Defect or Material Breach, as the case may be, does not
relate to
whether the affected Mortgage Loan is or, as of the Closing Date
(or, in the
case of a Replacement Mortgage Loan, as of the related date of
substitution),
was a Qualified Mortgage, (ii) that such Material Document Defect
or Material
Breach, as the case may be, is capable of being cured but not
within the
applicable Initial Resolution Period, (iii) that such Mortgage Loan
Seller has
commenced and is diligently proceeding with the cure of such
Material Document
Defect or Material Breach, as the case may be, during the
applicable Initial
Resolution Period, and (iv) that such Mortgage Loan Seller
anticipates that such
Material Document Defect or Material Breach, as the case may be,
will be cured
within an additional 90-day period (such additional 90-day period,
the
"Resolution Extension Period"), then the Mortgage Loan Seller shall
have an
additional period equal to any such applicable Resolution Extension
Period to
complete such correction or cure (or, upon failure to complete such
correction
or cure, to repurchase the affected Mortgage Loan); and provided,
further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated
above (but,
in any event, no later than such repurchase would have to have been
completed),
such Mortgage Loan Seller shall be permitted, during the
three-month period
following the Startup Day for the REMIC Pool that holds the
affected Mortgage
Loan (or during the two-year period following such Startup Day if
the affected
Mortgage Loan is a "defective obligation" within the meaning of
Section
860G(a)(4)(B)(ii) of the Code and Treasury regulation section
1.860G-2(f)), to
replace the affected Mortgage Loan with one or more Qualifying
Substitute
Mortgage Loans and to pay a cash amount equal to the applicable
Substitution
Shortfall Amount. The parties hereto agree that delivery by the
Trustee (or a
Custodian on its behalf) of a certification or schedule of
exceptions to the
Mortgage Loan Seller pursuant to the Pooling and Servicing
Agreement shall not
in and of itself constitute delivery of notice of any Material
Document Defect
or knowledge of the Mortgage Loan Seller of any Material Document
Defect
therein. If any Mortgage Loan is to be repurchased or replaced as
contemplated
by this subsection, the Purchaser or its designee shall be entitled
to designate
the account to which funds in the amount of the applicable Purchase
Price or
Substitution Shortfall Amount (as the case may be) are to be wired.
Any such
repurchase or replacement of a Mortgage Loan shall be on a whole
loan, servicing
released basis. Notwithstanding this subsection, the absence from
the Mortgage
File, (i) on the Closing Date of
9
the Mortgage Note (or a lost note affidavit and indemnity with a
copy of the
Mortgage Note) and (ii) by the first anniversary of the Closing
Date of
originals or copies of the following documents (without the
presence of any
factor that reasonably mitigates such absence, non-conformity or
irregularity)
or of any Specially Designated Mortgage Loan Document shall be
conclusively
presumed to be a Material Document Defect and shall obligate the
Mortgage Loan
Seller to cure such Material Document Defect, or, failing that,
repurchase the
related Mortgage Loan or REO Mortgage Loan, all in accordance with
the
procedures set forth herein: (a) the Mortgage and any separate
Assignment of
Leases as described by clauses (ii) and (iii) of the definition of
"Mortgage
File"; (b) the title insurance policy as described in clause (viii)
of the
definition of "Mortgage File" (or, if the policy has not yet been
issued, an
original or copy of a written commitment "marked-up" at the closing
of such
Mortgage Loan, interim binder or the pro forma title insurance
policy, in each
case evidencing a binding commitment to issue such policy); or (c)
the
assignment of Mortgage (and any separate Assignment of Leases) as
described by
clause (iv) of the definition of "Mortgage File". For purposes of
this
paragraph, the relevant definition of "Mortgage File" shall be the
definition of
such term set forth in the Pooling and Servicing Agreement as in
full force and
effect on the Closing Date.
The remedies provided for in this subsection with respect to any
Material Document Defect or Material Breach with respect to any
Mortgage Loan
shall apply to the related REO Property.
If (x) a Defective Mortgage Loan is to be repurchased or replaced
as
described above, (y) such Defective Mortgage Loan is part of a
Cross-Collateralized Group and (z) the applicable document defect
or breach does
not constitute a Material Document Defect or Material Breach, as
the case may
be, as to the other Mortgage Loan(s) that are a part of such
Cross-Collateralized Group (the "Other Crossed Loans") (without
regard to this
paragraph), then the applicable Document Defect or Breach (as the
case may be)
shall be deemed to constitute a Material Document Defect or
Material Breach (as
the case may be) as to each such Other Crossed Loan for purposes of
the above
provisions, and the Mortgage Loan Seller shall be obligated to
repurchase or
replace each such Other Crossed Loan in accordance with the
provisions above
unless, in the case of such Breach or Document Defect:
(A) the Mortgage Loan Seller (at its expense) delivers or causes
to be delivered to the Trustee an Opinion of Counsel to the effect
that its
repurchase of only those Mortgage Loans as to which a Material
Breach has
actually occurred without regard to the provisions of this
paragraph (the
"Affected Loan(s)") and the operation of the remaining provisions
of this
Section 5(a) will not result in an Adverse REMIC Event with respect
to any
REMIC Pool, or an Adverse Grantor Event with respect to either
Grantor
Trust Pool, under the Pooling and Servicing Agreement; and
(B) both of the following conditions would be satisfied if the
Mortgage Loan Seller were to repurchase or replace only the
Affected Loans
and not the Other Crossed Loans:
(i) the debt service coverage ratio for all such Other
Crossed Loan (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement is not
less than the least of (A) 0.10x
10
below the debt service coverage ratio for the Cross-Collateralized
Group (including the Affected Loan(s)) set forth in Appendix B to
the
Prospectus Supplement, (B) the debt service coverage ratio for the
Cross-Collateralized Group (including the Affected Loan(s)) for the
four preceding calendar quarters preceding the repurchase or
replacement and (C) 1.25x; and
(ii) the loan-to-value ratio for the Other Crossed Loans is
not greater than the greatest of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for the
Cross-Collateralized Group (including the Affected Loan(s)) set
forth
in Appendix B to the Prospectus Supplement plus 10%, (B) the
loan-to-value ratio for the Cross-Collateralized Group (including
the
Affected Loan(s)) at the time of repurchase or replacement, and (C)
75%.
The determination of the applicable Master Servicer as to whether
the conditions set forth above have been satisfied shall be
conclusive and
binding in the absence of manifest error. The applicable Master
Servicer
will be entitled to cause to be delivered, or direct the Mortgage
Loan
Seller to (in which case the Mortgage Loan Seller shall) cause to
be
delivered, to the applicable Master Servicer an Appraisal of any or
all of
the related Mortgaged Properties for purposes of determining
whether the
condition set forth in clause (ii) above has been satisfied, in
each case
at the expense of the Mortgage Loan Seller if the scope and cost of
the
Appraisal is approved by the Mortgage Loan Seller and the
Controlling Class
Representative (such approval not to be unreasonably withheld in
each
case).
With respect to any Defective Mortgage Loan that forms a part of
a Cross-Collateralized Group and as to which the conditions
described in
the preceding paragraph are satisfied, such that the Trust Fund
will
continue to hold the Other Crossed Loans, the Mortgage Loan Seller
and the
Purchaser agree to forbear from enforcing any remedies against the
other's
Primary Collateral but each is permitted to exercise remedies
against the
Primary Collateral securing its respective Mortgage Loans,
including with
respect to the Trustee, the Primary Collateral securing the
Affected
Loan(s) still held by the Trustee, so long as such exercise does
not impair
the ability of the Mortgage Loan Seller to exercise its remedies
against
its Primary Collateral. If the exercise of remedies by one such
party would
impair the ability of the other such party to exercise its remedies
with
respect to the Primary Collateral securing the Affected Loan or the
Other
Crossed Loans, as the case may be, held by the other such party,
then both
parties shall forbear from exercising such remedies unless and
until the
Mortgage Loan Documents evidencing and securing the relevant
Mortgage Loans
can be modified in a manner that complies with this Agreement to
remove the
threat of impairment as a result of the exercise of remedies. Any
reserve
or other cash collateral or letters of credit securing any of the
Cross-Collateralized Loans shall be allocated between the Mortgage
Loans in
accordance with the Mortgage Loan Documents, or otherwise on a pro
rata
basis based upon their outstanding Stated Principal Balances. All
other
terms of the Mortgage Loans shall remain in full force and effect,
without
any modification thereof. The Borrowers set forth on Schedule V to
the
Pooling and Servicing Agreement are intended third-party
beneficiaries of
the provisions set forth in this paragraph and the preceding
paragraph.
11
The provisions of this paragraph and the preceding paragraph may
not be
modified with respect to any Mortgage Loan without the related
Borrower's
consent.
All costs and expenses incurred by the Trustee and the applicable
Master Servicer with respect to any Cross-Collateralized Group
pursuant to
the preceding paragraph shall be included in the calculation of
Purchase
Price for the Affected Loan(s) to be repurchased or replaced.
(b) Whenever one or more Replacement Mortgage Loans are substituted
for a Defective Mortgage Loan by the Mortgage Loan Seller as
contemplated by
this Section 5, upon direction by the applicable Master Servicer,
the Mortgage
Loan Seller shall deliver to the Trustee the related Mortgage File
and a
certification to the effect that such Replacement Mortgage Loan
satisfies or
such Replacement Mortgage Loans satisfy, as the case may be, all of
the
requirements of the definition of "Qualifying Substitute Mortgage
Loan". No
mortgage loan may be substituted for a Defective Mortgage Loan as
contemplated
by this Section 5 if the Mortgage Loan to be replaced was itself a
Replacement
Mortgage Loan, in which case, absent a cure of the relevant
Material Breach or
Material Document Defect, the affected Mortgage Loan will be
required to be
repurchased as contemplated hereby. Monthly Payments due with
respect to each
Replacement Mortgage Loan (if any) after the related date of
substitution, and
Monthly Payments due with respect to each corresponding Deleted
Mortgage Loan
(if any) after its respective Cut-off Date and on or prior to the
related date
of substitution, shall be part of the Trust Fund. Monthly Payments
due with
respect to each Replacement Mortgage Loan (if any) on or prior to
the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) after the related date
of
substitution, shall not be part of the Trust Fund and are to be
remitted by the
applicable Master Servicer to the Mortgage Loan Seller promptly
following
receipt.
If any Mortgage Loan is to be repurchased or replaced by the
Mortgage
Loan Seller as contemplated by this Section 5, upon direction by
the applicable
Master Servicer, the Mortgage Loan Seller shall amend the Mortgage
Loan Schedule
to reflect the removal of any Deleted Mortgage Loan and, if
applicable, the
substitution of the related Replacement Mortgage Loan(s) and
deliver or cause
the delivery of such amended Mortgage Loan Schedule to the parties
to the
Pooling and Servicing Agreement. Upon any substitution of one or
more
Replacement Mortgage Loans for a Deleted Mortgage Loan, such
Replacement
Mortgage Loan(s) shall become part of the Trust Fund and be subject
to the terms
of this Agreement in all respects.
(c) Upon the date when the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage
Loan
repurchased or replaced by the related Mortgage Loan Seller as
contemplated by
this Section 5 has been deposited in the account designated
therefor by the
Purchaser (or the applicable Master Servicer on its behalf), and
further, if
applicable, upon receipt by the Purchaser (or the Trustee or a
Custodian
appointed thereby) of the Mortgage File for each Replacement
Mortgage Loan (if
any) to be substituted for a Deleted Mortgage Loan, together with
any
certifications and/or opinions required pursuant to this Section 5
to be
delivered by the Mortgage Loan Seller, the Purchaser (or the
Trustee) shall (i)
release or cause the release of the Mortgage File and any
Additional Collateral
held by or on behalf of the Purchaser (or the Trustee) for the
Deleted Mortgage
Loan to the Mortgage Loan
12
Seller or its designee and (ii) execute and deliver such
instruments of release,
transfer and/or assignment, in each case without recourse, as shall
be provided
to it and are reasonably necessary to vest in the Mortgage Loan
Seller or its
designee the ownership of the Deleted Mortgage Loan, and the
Purchaser (or the
applicable Master Servicer on its behalf) shall notify the affected
Borrowers of
the transfers of the Deleted Mortgage Loan(s) and any Replacement
Mortgage
Loan(s). In connection with any such repurchase or substitution by
the Mortgage
Loan Seller, each of the applicable Master Servicer and the Special
Servicer (or
other servicing agent for the Purchaser) shall deliver to the
Mortgage Loan
Seller or its designee any portion of the related Servicing File,
together with
any Escrow Payments, Reserve Funds and Additional Collateral, held
by or on
behalf of such Master Servicer or the Special Servicer (or other
servicing agent
for the Purchaser), as the case may be, with respect to the Deleted
Mortgage
Loan, in each case at the expense of the Mortgage Loan Seller.
(d) It is understood and agreed that the obligations of the
Mortgage
Loan Seller set forth in this Section 5 to cure a Material Breach
or a Material
Document Defect, or to repurchase or replace the related Defective
Mortgage
Loan(s), constitute the sole remedies available to the Purchaser,
the
Certificateholders or the Trustee on behalf of the
Certificateholders with
respect to a Breach or Document Defect in respect of any Mortgage
Loan.
Notwithstanding the foregoing, to the extent (but only to the
extent)
that (A) the Mortgage Loan Seller represents in the representation
and warranty
set forth in the final sentence of paragraph 23 or the
representation and
warranty set forth in the final sentence of paragraph 29 of Exhibit
C attached
hereto that the Borrower under a Mortgage Loan is required to pay,
or that the
lender is entitled to charge the Borrower for, a cost or expense
described in
such sentence, (B) such representation and warranty is untrue with
respect to
such cost or expense, (C) the Purchaser actually incurs such cost
or such
expense, (D) the Purchaser (or a Person acting on behalf of the
Purchaser)
exercises efforts consistent with the Servicing Standard and the
related
Mortgage Loan Documents to collect such cost or expense from the
Borrower and
(E) the Borrower does not pay such cost or expense at or before the
conclusion
of the efforts described in the preceding clause (D), then the
Mortgage Loan
Seller hereby covenants and agrees (it being the intention of the
parties that
all, and not less than all, of the conditions described in the
preceding clauses
(A), (B), (C), (D) and (E) shall be precedent to such covenant and
agreement) to
pay such cost or expense within 90 days following a direction by
the Purchaser
(or a Person acting on behalf of the Purchaser) to do so. Also
notwithstanding
the foregoing, the remedy described in the immediately preceding
sentence shall
constitute the sole remedy available to the Purchaser, the
Certificateholders or
the Trustee on behalf of the Certificateholders with respect to any
breach of
any representation described in clause (A) of the immediately
preceding
sentence, the Mortgage Loan Seller shall not otherwise have any
obligation to
cure such a breach and the Mortgage Loan Seller shall not have any
obligation to
repurchase or replace the affected Mortgage Loan.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Sidley Austin LLP, 787
Seventh
Avenue, New York, New York 10019 at 10:00 a.m., New York City time,
on the
Closing Date.
The Closing shall be subject to each of the following conditions:
13
(i) All of the representations and warranties of the Mortgage Loan
Seller made pursuant to Section 4 of this Agreement shall be true
and
correct in all material respects as of the Closing Date;
(ii) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
reasonably
acceptable to the Purchaser and, in the case of the Pooling and
Servicing
Agreement (insofar as such Agreement affects the obligations of the
Mortgage Loan Seller hereunder), to the Mortgage Loan Seller, shall
be duly
executed and delivered by all signatories as required pursuant to
the
respective terms thereof;
(iii) The Mortgage Loan Seller shall have delivered and released to
the Purchaser or its designee, all documents, funds and other
assets
required to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) The result of any examination of the Mortgage Files for, and
any
other documents and records relating to, the Mortgage Loans
performed by or
on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with
in all material respects, and the Mortgage Loan Seller shall have
the
ability to comply with all terms and conditions and perform all
duties and
obligations required to be complied with or performed by it after
the
Closing Date;
(vi) The Mortgage Loan Seller shall have paid all fees and expenses
payable by it to the Purchaser or otherwise pursuant to this
Agreement;
(vii) the Mortgage Loan Seller shall have received the purchase
price
for the Mortgage Loans, as contemplated by Section 1; and
(viii) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its terms.
Each of the parties agrees to use their commercially reasonable
best
efforts to perform their respective obligations hereunder in a
manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 7. Closing Documents. The Purchaser or its designee shall
have
received all of the following Closing Documents, in such forms as
are agreed
upon and acceptable to the Purchaser, the Underwriters, the Initial
Purchasers
and the Rating Agencies (collectively, the "Interested Parties"),
and upon which
the Interested Parties may rely:
(i) This Agreement, duly executed by the Purchaser and the Mortgage
Loan Seller;
14
(ii) Each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) An Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of
the
Mortgage Loan Seller, in his or her individual capacity, and dated
the
Closing Date, and upon which the Interested Parties may rely,
attaching
thereto as exhibits (A) the resolutions of the board of directors
of the
Mortgage Loan Seller authorizing the Mortgage Loan Seller's
entering into
the transactions contemplated by this Agreement and the
Indemnification
Agreement, and (B) the organizational documents of the Mortgage
Loan
Seller;
(iv) A certificate of good standing with respect to the Mortgage
Loan
Seller issued by the Secretary of State of the State of Delaware
not
earlier than 60 days prior to the Closing Date, and upon which the
Interested Parties may rely;
(v) A Certificate of the Mortgage Loan Seller substantially in the
form of Exhibit D-2 hereto, executed by an executive officer of the
Mortgage Loan Seller on the Mortgage Loan Seller's behalf and dated
the
Closing Date, and upon which the Interested Parties may rely;
(vi) [Reserved];
(vii) A written opinion of Dechert LLP, special counsel for the
Mortgage Loan Seller, dated the Closing Date and addressed to the
Interested Parties and the Trustee, which opinion shall be
substantially in
the form of Exhibit D-3B hereto (with such additions, deletions or
modifications as may be required by either Rating Agency);
(viii) A letter from Dechert LLP, special counsel for the Mortgage
Loan Seller, dated the Closing Date and addressed to 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
15
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
