MORTGAGE LOAN PURCHASE AGREEMENT
(BEAR ▇▇▇▇▇▇▇ LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of July 1, 1999,
between Bear, ▇▇▇▇▇▇▇ Funding Inc. (the "Seller"), and Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc. (the "Purchaser").
The Seller agrees to sell and the Purchaser agrees to purchase certain
mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. The Purchaser will convey the Mortgage Loans to a trust (the "Trust")
created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), to be dated as of July 1, 1999 (the "Cut-Off Date"),
between the Purchaser, as depositor, ▇▇▇▇▇ Fargo Bank, National Association, as
servicer (the "Servicer"), GMAC Commercial Mortgage Corporation, as special
servicer (the "Special Servicer"), Norwest Bank, Minnesota, National
Association, as paying agent, LaSalle National Bank, as trustee (the "Trustee")
and ABN Amro Bank, N.V., as fiscal agent (the "Fiscal Agent"). In exchange for
the Mortgage Loans and certain other mortgage loans (the "Bear ▇▇▇▇▇▇▇ Mortgage
Loans"), the Trust will issue to the Purchaser pass-through certificates to be
known as and Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., Commercial
Mortgage Pass-Through Certificates, Series 1999-WF2 (the "Certificates"). The
Certificates will be issued pursuant to the Pooling and Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-2, Class B, Class C, Class D, Class E, Class F and
Class X Certificates (the "Public Certificates") will be sold by the Purchaser
to Bear ▇▇▇▇▇▇▇ & Co., Inc. ("Bear ▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇") and Norwest Investment Services, Inc. ("Norwest") (collectively, the
"Initial Purchasers") pursuant to an Underwriting Agreement, between the
Purchaser and the Initial Purchasers, dated as of June 15, 1999 (the
"Underwriting Agreement") and the Class G, Class H, Class I, Class J, Class K,
Class L, Class M, Class R-I, Class R-II and Class R-III Certificates (the
"Private Certificates") will be sold by the Purchaser to Bear ▇▇▇▇▇▇▇ pursuant
to a Certificate Purchase Agreement, between the Purchaser and Bear ▇▇▇▇▇▇▇,
dated as of June 15, 1999 (the "Certificate Purchase Agreement"). The Initial
Purchasers will offer the Public Certificates for sale publicly pursuant to a
Prospectus dated August 18, 1998 ("the "Prospectus"), as supplemented by a
preliminary Prospectus Supplement dated June 9, 1999 (such Prospectus,
preliminary Prospectus Supplement and the diskette delivered therewith,
collectively, the "Preliminary Prospectus Supplement") and as further
supplemented and amended by a final Prospectus Supplement dated June 15, 1999
(such Prospectus, final Prospectus Supplement and the diskette delivered
therewith, collectively, the "Final Prospectus Supplement"), and Bear ▇▇▇▇▇▇▇
will offer the Private Certificates for sale in transactions exempt from the
registration requirements of the Securities Act of 1933 pursuant to a Private
Placement Memorandum to be dated June 15, 1999 (the "Memorandum").
In consideration of the mutual agreements contained herein, the Seller and
the Purchaser hereby agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The sale of the Mortgage
Loans shall take place on June 29, 1999 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date"). The purchase price to be
paid by the Purchaser for the Mortgage Loans shall equal the amount set forth as
such purchase price in the letter between the Seller and the Purchaser dated as
of the Closing Date. Such purchase price shall be paid to the Seller by wire
transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee pursuant to
the Pooling and Servicing Agreement all of its right, title and interest in and
to the Mortgage Loans and its rights under this Agreement (to the extent set
forth in Section 14), and the Trustee shall succeed to such right, title and
interest in and to the Mortgage Loans and the Purchaser's rights under this
Agreement (to the extent set forth in Section 14).
SECTION 2. Conveyance of Mortgage Loans. Effective as of the Closing Date,
subject only to receipt of the consideration referred to in Section 1 hereof and
the satisfaction of the conditions specified in Sections 6 and 7 hereof, the
Seller does hereby transfer, assign, set over and otherwise convey to the
Purchaser, without recourse, all the right, title and interest of the Seller in
and to the Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from time to
time, on or prior to the Closing Date shall conform to the requirements of this
Agreement and the Pooling and Servicing Agreement. In connection with such
transfer and assignment, the Seller shall deliver to the Trustee, on behalf of
the Purchaser, on or prior to the Closing Date, the Mortgage Note (as described
in clause (i) below) for each Mortgage Loan. In addition, not later than the
30th day following the Closing Date, the Seller shall deliver to the Trustee
each of the remaining documents or instruments specified below (with such
exceptions as are permitted by this Section) with respect to each Mortgage Loan
(each, a "Mortgage File"). (The Seller acknowledges that the term "without
recourse" does not modify the duties of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the Closing
Date are to be held by the Trustee in escrow on behalf of the Seller at all
times prior to the Closing Date. The Mortgage Files shall be released from
escrow upon closing of the sale of the Mortgage Loans and payments of the
purchase price therefor as contemplated hereby. The Mortgage File for each
Mortgage Loan shall contain the following documents:
(i) each original Mortgage Note, bearing, or accompanied by, all
prior and intervening endorsements or assignments showing a complete chain
of endorsement or assignment from the originator of the Mortgage Loan to
the Seller, and further endorsed, on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the following
form: "Pay to the order of LaSalle Bank, National Association, as trustee
for the registered Holders of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities
Inc. Commercial Mortgage Pass-Through Certificates, Series 1999-WF2,
without recourse, representation or warranty, express or implied" or if the
original Mortgage Note is not
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included therein, then a lost note affidavit containing a customary
indemnification provision with a copy of the Mortgage Note attached
thereto;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies from the
applicable recording office) of any intervening assignments thereof showing
a complete chain of assignment from the originator of the Mortgage Loan to
the Seller, in each case with evidence of recording indicated thereon, or
certified by a title insurance company or escrow company to be a true copy
thereof; provided that if such original Mortgage cannot be delivered prior
to the Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation or
because the original Mortgage has been lost, the Seller shall deliver or
cause to be delivered to the Trustee a true and correct copy of such
Mortgage together with, in the case of a delay caused by a public recording
office, an Officer's Certificate of the Seller stating that such original
Mortgage has been sent to the appropriate public recording official for
recordation, or, in the case of an original Mortgage having been lost after
recordation, a copy of such Mortgage certified by the appropriate public
recording office where such Mortgage is recorded to be a true and complete
copy of such original Mortgage, or in the case of an original blanket
intervening Assignment retained by the Seller, a copy thereof certified by
the Seller or, if any original intervening Assignment has not been returned
from the applicable public recording office or has been lost, the Seller
shall deliver or cause to be delivered to the Trustee a true and correct
copy of such Assignment together with, in the case of a delay caused by a
public recording office, an Officer's Certificate of the Seller stating
that such original Assignment has been sent to the appropriate public
recording official for recordation, or, in the case of an original
Assignment having been lost after recordation, a copy of such Assignment
certified by the appropriate public recording office where such Assignment
is recorded to be a true and complete copy of such original Assignment;
(iii) an original assignment of the Mortgage, in recordable form, to
"LaSalle Bank, National Association, as trustee for the registered Holders
of Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc. Commercial Mortgage
Pass-Through Certificates, Series 1999-WF2";
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the originals or
copies of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the Seller, in each
case with evidence of recording thereon or, if any original Assignment of
Leases has not been returned from the applicable public recording office or
has been lost, the Seller shall deliver or cause to be delivered to the
Trustee a true and correct copy of such Assignment of Leases together with,
in the case of a delay caused by a public recording office, an Officer's
Certificate of the Seller stating that such original Assignment of Leases
has been sent to the appropriate public recording official for recordation,
or, in the case of an original Assignment of Leases having been lost after
recordation, a copy of such Assignment of Leases certified by the
appropriate public recording office where such Assignment of Leases is
recorded to be a true and complete copy of such original Assignment of
Leases;
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(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form,
executed by the Seller in favor of the Trustee (in such capacity);
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals or copies
of any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the Seller, in each
case with evidence of recording thereon;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in recordable form,
executed by the Seller in favor of the Trustee (in such capacity);
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements and all Money
Term or otherwise material modifications, with evidence of recording
thereon, where appropriate, in those instances where the terms or
provisions of the Mortgage, Mortgage Note or any related security document
have been consolidated or modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Mortgage Loan, together
with all endorsements or riders that were issued with or subsequent to the
issuance of such policy, or if the policy has not yet been issued, an
original or copy of a written commitment, interim binder or the pro forma
title insurance policy, dated as of the date on which the related Mortgage
Loan was funded with the original title insurance policy to follow within
180 days of the Closing Date or a preliminary title report with an original
title insurance policy to follow within 180 days of the Closing Date;
(x) the original or a copy of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements, assignments thereof and
continuation statements, or copies thereof, sufficient to perfect (and
maintain the perfection of) the security interest held by the originator of
the Mortgage Loan (and each assignee prior to the Trustee) in and to the
personalty of the Mortgagor at the Mortgaged Property (in each case with
evidence of filing thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the Mortgage,
any Mortgage Note or other document or instrument referred to above was not
signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that
is subordinate to such Mortgage Loan, any subordination agreement, pursuant
to which such Additional Debt is subordinated to such Mortgage Loan;
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(xiv) copies of ground leases related to any Mortgage Loan where the
Mortgagor is the lessee under such lease and there is a lien in favor of
the mortgagee in such lease;
(xv) any survey of the related Mortgaged Property;
(xvi) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(xvii) an original or copy of any lock-box agreements, intercreditor
agreements and management agreements related to any Mortgage Loan;
(xviii) an original or copy of any environmental reports and
environmental indemnification agreements related to any Mortgage Loan; and
(xix) an original of each letter of credit, if any, constituting
additional collateral for such Mortgage Loan, together with the original
supporting documentation evidencing a beneficial transfer, in favor of
"LaSalle Bank, National Association, as trustee for Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc. Commercial Mortgage Pass-Through Certificates,
Series 1999-WF2.
"Officer's Certificate" shall mean a certificate signed by one or more of
the Chairman of the Board, any Vice Chairman, the President, any Senior Vice
President, any Vice President, any Assistant Vice President, any Treasurer, any
Assistant Treasurer or any Servicing Officer (as defined in the Pooling and
Servicing Agreement).
The assignment of Mortgage, assignment of Assignment of Leases and
assignment of UCC financing statement referred to in clauses (iv), (v), (vii)
and (xi) may be in the form of a single instrument assigning the Mortgage,
Assignment of Leases and UCC financing statement to the extent permitted by
applicable law. The Seller will deliver the original Mortgage Note to the
Trustee, on behalf of the Purchaser, endorsed in blank, to effect the transfer
to the Purchaser of the Mortgage Notes and all related deeds of trust, mortgages
and other loan documents specified above. Concurrently herewith, the Purchaser
has contracted to sell the Mortgage Loans to the Trustee on behalf of the
Certificateholders. To avoid the unnecessary expense and administrative
inconvenience associated with the execution and recording or filing of multiple
assignments of mortgages, assignments of leases (to the extent separate from the
mortgages) and assignments of UCC financing statements, the Seller shall
execute, in accordance with the third succeeding paragraph, assignments of
mortgages, the assignments of leases (to the extent separate from the mortgages)
and assignments of UCC financing statements relating to the Mortgage Loans
naming the Trustee on behalf of the Certificateholders as assignee.
Notwithstanding the fact that such assignments of mortgages, assignments of
leases (to the extent separate from the assignments of mortgages) and the
assignments of UCC financing statements shall name the Trustee on behalf of the
Certificateholders as the assignee, the parties hereto acknowledge and agree
that the Mortgage Loans shall for all purposes be deemed to have been
transferred from the Seller to the Purchaser and from the Purchaser to the
Trustee on behalf of the Certificateholders.
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If the Seller cannot deliver, or cause to be delivered, as to any Mortgage
Loan, the original Mortgage Note, the Seller shall deliver a copy or duplicate
original of such Mortgage Note, together with an affidavit certifying that the
original thereof has been lost or destroyed and indemnification of the Purchaser
and of the Trustee on behalf of the Trust Fund against any losses that the Trust
Fund may incur by reason of such lost or destroyed Mortgage Note. If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in clauses (ii), (iv), (vi), (vii) and
(viii) above, with evidence of recording thereon, solely because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation, the delivery requirements of this Mortgage Loan
Purchase Agreement shall be deemed to have been satisfied as to such
non-delivered document or instrument provided that a photocopy of such
non-delivered document or instrument (certified by the Seller to be a true and
complete copy of the original thereof submitted for recording) is delivered to
the Purchaser, the Trustee or a Custodian appointed thereby on or before the
Closing Date, and either the original of such non-delivered document or
instrument, or a photocopy thereof (certified by the appropriate county
recorder's office, in the case of the documents and/or instruments referred to
in clause (ii) above to be a true and complete copy of the original thereof
submitted for recording), with evidence of recording thereon, is delivered to
the Purchaser, the Trustee or such Custodian within 180 days of the Closing Date
(or within such longer period after the Closing Date as the Purchaser may
consent to, which consent shall not be unreasonably withheld so long as the
Seller is, as certified in writing to the Purchaser and the Trustee no less
often than every 90 days, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, any of the
documents and/or instruments referred to in the definition of "Mortgage File",
with evidence of recording thereon, for any other reason, including, without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this paragraph shall be deemed to have been satisfied
as to such non-delivered document or instrument and such non-delivered document
or instrument shall be deemed to have been included in the Mortgage File,
provided that a photocopy of such non-delivered document or instrument (with
evidence of recording thereon and certified in the case of the documents and/or
instruments referred to in clause (ii) above by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Purchaser, the Trustee or a
Custodian appointed thereby on or before the Closing Date together with an
affidavit certifying that the original thereof has been lost or destroyed. With
respect to any Mortgage Loan, notwithstanding the foregoing, the Seller may
deliver a UCC-3 on or before the Closing Date that does not contain the filing
information for the related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has
not been returned to the Seller by the applicable filing office, and the Seller
may deliver an assignment referred to in clauses (iii), (v) or (vii) above that
does not contain the recording information for the related Mortgage, Assignment
of Leases or Security Agreement, as applicable, if such Mortgage, Assignment of
Leases or Security Agreement has not been returned to the Seller by the
applicable recording office. The Seller hereby authorizes the Purchaser, acting
in its stead and on its behalf, to fill in any missing filing or recording
information or any instrument or document required to be delivered pursuant to
this paragraph.
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Except under the circumstances provided for in the last sentence of this
paragraph, the Seller shall as to each Mortgage Loan, promptly (and in any event
within 45 days of the later of the Closing Date and the Purchaser's and
Trustee's actual receipt of the related documents) cause to be submitted for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment referred to in clauses (iii), (v) and (vii) above and each UCC-3 to
the Trustee. Each such assignment shall reflect that it should be returned by
the public recording office to the Trustee or its designee following recording,
and each such UCC-3 shall reflect that the file copy thereof should be returned
to the Trustee or its designee following filing. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, the Purchaser, the Trustee or a Custodian or its
agent shall prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter the Trustee shall upon receipt
thereof cause the same to be duly recorded or filed, as appropriate. The
Purchaser shall execute, or cause the Seller to execute any replacement document
or instrument being filed in substitution for any such lost or returned
unrecorded or unfiled document or instrument and assist the Purchaser, the
Trustee or a Custodian or its agent in recording or filing such documents or
instruments. Notwithstanding the foregoing, there shall be no requirement to
record any assignment to the Trustee referred to in clause (iii), (v) or (vii)
above, or to file any UCC-3 referred to in clause (xi) above in those
jurisdictions where, in the written opinion of local counsel of Purchaser, the
Trustee or a Custodian acceptable to the Purchaser and the Trustee, such
recordation and/or filing is not required to protect the Purchaser's or the
Trustee's interest in the Mortgage Loans against sale, further assignment,
satisfaction or discharge by the Seller or the Purchaser.
The Trustee, as assignee or transferee of the Purchaser for the benefit of
the holders of the Certificates, shall be entitled to all scheduled payments of
principal due after the Cut-Off Date, all other payments of principal collected
after the Cut-Off Date (other than scheduled payments of principal due on or
before the Cut-Off Date), and all payments of interest on the Mortgage Loans
allocable to the period commencing on the Cut-Off Date. All scheduled payments
of principal and interest due on or before the Cut-Off Date and collected after
the Cut-Off Date shall belong to the Seller.
All documents relating to the Mortgage Loans that are not required to be
delivered to the Trustee, shall be shipped by the Seller to the Servicer, on
behalf of the Purchaser, on or prior to the Closing Date.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser pursuant
to this Agreement, the ownership of each Mortgage Note, Mortgage and the other
contents of the related Mortgage File shall be vested in the Purchaser and its
assigns, and the ownership of all records and documents with respect to the
related Mortgage Loan prepared by or which come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller either to the Trustee or the Servicer as set
forth herein. The Seller's records shall reflect the transfer of each Mortgage
Loan to the Purchaser and its assigns as a sale.
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The Seller shall cause all funds on deposit in escrow accounts maintained
with respect to the Mortgage Loans in the name of the Seller or any other name
to be transferred to the Servicer promptly after the Closing Date, but in all
events within three (3) business days after the Closing Date.
It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to the Purchaser, by the Seller as provided
in this Section 2 be, and be construed as, an absolute sale of the Mortgage
Loans and related property. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans and related
property by the Seller to the Purchaser to secure a debt or other obligation of
the Seller. However, in the event that, notwithstanding the intent of the
parties, the Mortgage Loans or any related property is held to be the property
of the Seller, or if for any other reason this Agreement is held or deemed to
create a security interest in the Mortgage Loans or any related property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser, of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit and investment property consisting of, arising
from or relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related Mortgage
Notes, Mortgages, security agreements, and title, hazard and other
insurance policies, all distributions with respect thereto payable on and
after the Cut-off Date, all substitute or replacement Mortgage Loans and
all distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods, letters
of credit, advices of credit, investment property, and other rights arising
from or by virtue of the disposition of, or collections with respect to, or
insurance proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in clause (A)
above (including any accrued discount realized on liquidation of any
investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described in
clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage Notes, the
Mortgages, and such other goods, letters of credit, advices of credit,
instruments, money, documents, chattel paper or certificated securities shall be
deemed to be possession by the secured party or possession by a purchaser for
purposes of perfecting the security interest
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pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-305 and 9-115 thereof) as in force in the relevant jurisdiction.
Notwithstanding the foregoing, the Seller makes no representation or warranty
as to the perfection of any such security interest.
Notifications to Persons holding such property, 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 of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take such
reasonable actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party under the Uniform Commercial Code
as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, the Purchaser
shall not be required to purchase any Mortgage Loan as to which any Mortgage
Note (as described in clause (i) above) required to be delivered to the Trustee
or the Servicer pursuant to this Section 2 on or before the Closing Date is not
so delivered or deemed to be delivered, or is not properly executed or is
defective on its face, and the Purchaser's acceptance of the related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of such omission or
defect or of the Purchaser's or its successors' and assigns' rights in respect
thereof pursuant to Section 5.
SECTION 3. Examination of Mortgage Files and Due Diligence Review. The
Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser which contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow representatives of
any of the Purchaser, each Initial Purchaser, the Trustee, the Special Servicer
and each Rating Agency to examine and audit all books, records and files
pertaining to the Mortgage Loans, the Seller's underwriting procedures and the
Seller's ability to perform or observe all of the terms, covenants
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and conditions of this Agreement. Such examinations and audits shall take place
at one or more offices of the Seller during normal business hours and shall not
be conducted in a manner that is disruptive to the Seller's normal business
operations upon reasonable advance prior notice. In the course of such
examinations and audits, the Seller will make available to such representatives
of any of the Purchaser, each Initial Purchaser, the Trustee, the Special
Servicer and each Rating Agency reasonably adequate facilities, as well as the
assistance of a sufficient number of knowledgeable and responsible individuals
who are familiar with the Mortgage Loans and the terms of this Agreement, and
the Seller shall cooperate fully with any such examination and audit in all
material respects. On or prior to the Closing Date, the Seller shall provide the
Purchaser with all material information regarding the Seller's financial
condition and access to knowledgeable financial or accounting officers for the
purpose of answering questions with respect to the Seller's financial condition,
financial statements as provided to the Purchaser or other developments
affecting the Seller's ability to consummate the transactions contemplated
hereby or otherwise affecting the Seller in any material respect.
The Purchaser shall keep confidential any information regarding the Seller
that has been delivered into the Purchaser's possession and that is not
otherwise publicly available; provided, however, that such information shall not
be kept confidential (and the right to require confidentiality under any
confidentiality agreement is hereby waived) to the extent such information is
required to be included in the Memorandum, the Prospectus Supplement or the
Purchaser is required by law or court order to disclose such information.
SECTION 4. Representations and Warranties of the Seller and the Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller hereby
makes for the benefit of the Purchaser and its assigns with respect to each
Mortgage Loan as of the date hereof (or as of such other date specifically set
forth in the particular representation and warranty) each of the representations
and warranties set forth on Exhibit 2 hereto, subject to any exceptions set
forth on Schedule 1 to Exhibit 2 hereto, and hereby further represents and
warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America. The Seller has the requisite power and authority and
legal right to own the Mortgage Loans and to transfer and convey the
Mortgage Loans to the Purchaser and has the requisite power and authority
to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable in accordance with
its terms, except as such enforcement may be limited by (a) laws relating
to bankruptcy, insolvency, reorganization, receivership or moratorium, (b)
other laws relating to or affecting the rights of creditors generally, (c)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law) or (d) public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability
10
of the provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (a) such qualifications as may be required under state securities or
blue sky laws, (b) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(c) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (d) where the
lack of such consent, approval, authorization, qualification, registration,
filing or notice would not have a material adverse effect on the
performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the Seller,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (a) any term or provision of
the Seller's articles of association or by-laws, (b) any term or provision
of any material agreement, contract, instrument or indenture, to which the
Seller is a party or by which it or any of its assets is bound or result in
the creation or imposition of any lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument, other than pursuant to this Agreement, or (c)
after giving effect to the consents or taking of the actions contemplated
in subsection (iii), any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Seller or its assets, except where in any of the
instances contemplated by clauses (a), (b) or (c) above, any conflict,
breach or default, or creation or imposition of any lien, charge or
encumbrance, will not have a material adverse effect on the consummation of
the transactions contemplated hereby by the Seller or result in any
material adverse change in the business, operations, financial condition,
properties or assets of the Seller, or in any material impairment of the
right or ability of the Seller to carry on its business substantially as
now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in writing
against the Seller before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to materially
and adversely affect the transfer of the Mortgage Loans to the Purchaser or
the execution or delivery by, or enforceability against, the Seller of this
Agreement or have an effect on the financial condition of the Seller that
would materially and adversely affect the ability of the Seller to perform
its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
11
(vii) To the Seller's knowledge, the Mortgage Information (as
defined in that certain indemnification agreement, dated as of July 1,
1999, between the Seller, the Purchaser and the Initial Purchasers (the
"Indemnification Agreement")) does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
To induce the Purchaser to enter into this Agreement, the Seller hereby
covenants that the foregoing representations and warranties and those set forth
on Exhibit 2 hereto will be true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by the Seller
pursuant to this Section 4(a) shall survive the sale of the Mortgage Loans and
shall continue in full force and effect notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants to the Seller as of the date hereof:
(i) The Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware with full
power and authority to carry on its business as presently conducted by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement. The Purchaser
has duly and validly authorized the execution, delivery and performance of
this Agreement and has duly and validly executed and delivered this
Agreement. This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes the valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court, is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby which
has not been obtained or made by the Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or which may be applicable to the Purchaser or its assets.
12
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, rule,
writ, injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise) or
the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform its
obligation under this Agreement.
To induce the Seller to enter into this Agreement, the Purchaser hereby
covenants that the foregoing representations and warranties will be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser pursuant
to this Section 4(b) shall survive the purchase of the Mortgage Loans.
SECTION 5. Remedies Upon Breach of Representations and Warranties Made by
the Seller. (a) It is hereby acknowledged that the Purchaser shall make for the
benefit of the holders of the Certificates, whether directly or by way of
assignment of its rights hereunder to the Trustee, the representations and
warranties set forth on Exhibit 2 hereto.
(b) It is hereby further acknowledged that if any document required to be
delivered to the Trustee pursuant to Section 2 is not delivered as and when
required, not properly executed or is defective on its face, or if there is a
breach of any of the representations and warranties required to be made by the
Seller regarding the characteristics of the Mortgage Loans and/or the related
Mortgaged Properties as set forth in Exhibit 2 hereto, and in either case such
defect or breach materially and adversely affects the interests of the holders
of the Certificates (a "Material Document Defect" and a "Material Breach",
respectively), the party discovering such Material Document Defect or Material
Breach shall promptly notify the other parties and within 90 days of the earlier
of discovery by the Seller or receipt by the Seller of notice of such Material
Document Defect or such Material Breach, as the case may be, the Seller shall be
required to cure such Material Document Defect or Material Breach; provided,
however, the Purchaser or its assignee shall extend the cure period an
additional 90 days if the Seller certifies to the Purchaser or its assignee, as
applicable, that the Seller has been diligently attempting to cure such breach
within the 90 day period.
13
The Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured within the above cure
periods, the Seller shall, not later than 90 days after its discovery or the
Purchaser's or its assignee's notice to it respecting such Material Document
Defect or Material Breach, within the three-month period (or such longer period
as contemplated by the preceding paragraph) commencing on the Closing Date (or
within the two-year period commencing on the Closing Date if the related
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)),
either (i) repurchase the related Mortgage Loan from the Purchaser or its
assignee at the Purchase Price as defined in the Pooling and Servicing
Agreement, or (ii) at its option replace any Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such defect would cause
the Mortgage Loan to be other than a "qualified mortgage" (as defined in the
Code), then notwithstanding the previous sentence, repurchase or substitution
must occur within the sooner of (i) 90 days from the date the Seller was
notified of the defect or (ii) two years from the Closing Date. The Seller
agrees that any such substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
The obligations of the Seller set forth in this Section 5(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach or
breach of the representations and warranties set forth in Exhibit 2 hereto;
provided, that this limitation shall not in any way limit the Purchaser's
rights or remedies upon breach of any other representation or warranty or
covenant by the Seller set forth in this Agreement (other than those set forth
in Exhibit 2).
(c) The Pooling and Servicing Agreement shall provide that the Trustee (or
the Servicer or the Special Servicer on its behalf) shall give prompt written
notice to the Seller of its discovery of any Material Document Defect or
Material Breach and prompt notice to the Seller in the event that any Mortgage
Loan becomes a Specially Serviced Mortgage Loan (as defined in the Pooling and
Servicing Agreement). The Pooling and Servicing Agreement shall provide that any
of the following Document Defects shall be conclusively presumed to be Material
Document Defects: (a) the absence from the Mortgage File of the original signed
Mortgage Note, unless the Mortgage File contains a signed lost note affidavit
that appears to be regular on its face; (b) the absence from the Mortgage File
of the original signed Mortgage that appears to be regular on its face, unless
there is included in the Mortgage File a certified copy of the Mortgage and the
certificate states that the original signed Mortgage was sent for recordation
within the previous 180 days; or (c) the absence from the Mortgage File of the
item called for by paragraph (ix) of the definition of Mortgage File.
(d) If the Seller repurchases any Mortgage Loan pursuant to this Section 5,
the Purchaser or its assignee, following receipt by the Trustee of the Purchase
Price therefor, promptly shall deliver or cause to be delivered to the Seller,
all Mortgage Loan documents with respect to such Mortgage Loan, and each
document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner.
14
SECTION 6. Closing. The closing of the sale of the Mortgage Loans shall be
held at the offices of O'Melveny & ▇▇▇▇▇ LLP, New York, New York, at 10:00 a.m.
New York time, on the Closing Date.
The closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date.
(b) All Closing Documents specified in Section 7 of this
Agreement, in such forms as are agreed upon and acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or its
designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory to the
Purchaser and its affiliates in their sole determination and the parties shall
have agreed to the form and contents of the Mortgage Information (as defined in
the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the Purchaser shall have the ability to comply with all terms and
conditions and perform all duties and obligations required to be complied with
or performed after the Closing Date. (f) The Seller shall have paid all fees and
expenses payable by it to the Purchaser pursuant to Section 8 hereof.
(g) The Certificates to be so rated shall have been assigned ratings by
each Rating Agency no lower than the ratings specified for each such Class in
the Memorandum and the Prospectus Supplement.
(h) Neither Initial Purchaser shall have terminated the Underwriting
Agreement and Bear ▇▇▇▇▇▇▇ shall not have terminated the Certificate Purchase
Agreement.
(i) The Seller shall have received the purchase price for the Mortgage
Loans pursuant to Section 1 hereof.
(j) The Pooling and Servicing Agreement shall have been executed and
delivered by the parties thereto.
15
(k) The Seller shall have executed and delivered the Indemnification
Agreement.
All parties agree to use their 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 Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized officer of
the Seller and dated the Closing Date, and upon which the Purchaser and its
successors and assigns may rely, to the effect that: (a) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same force and effect as if made
on the Closing Date, provided that any representations and warranties made as of
a specified date shall be true and correct as of such specified date; and (b)
the Seller has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied on or prior to the Closing Date.
(c) True, complete and correct copies of the Seller's articles of
association and by-laws.
(d) A certificate of existence for the Seller from the Comptroller of the
Currency, dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Assistant Secretary of the Seller, dated the
Closing Date, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of in-house senior counsel to the Seller, dated the Closing
Date, substantially to the effect of the following (with such changes and
modifications as the Purchaser may approve and subject to such counsel's
reasonable qualifications):
(i) The Seller continues to hold a valid certificate to do business
as a national banking association under the laws of the United States and
has full corporate power and authority to enter into and perform its
obligations under this Agreement and the Indemnification Agreement.
(ii) This Agreement and the Indemnification Agreement have been duly
authorized, executed and delivered by the Seller.
16
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
or the Indemnification Agreement except any approvals as have been
obtained.
(iv) The consummation by the Seller of any of the transactions
contemplated by the terms of this Agreement and the Indemnification
Agreement does not conflict with or result in a breach or violation of, or
constitute a default under, the charter documents of the Seller.
(v) To his knowledge, there are no legal or governmental actions,
investigations or proceedings pending to which the Seller is a party, or
threatened against the Seller, (a) asserting the invalidity of this
Agreement or the Indemnification Agreement or (b) which materially and
adversely affect the performance by the Seller of its obligations under, or
the validity or enforceability of, this Agreement.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the federal laws of the United States.
(g) An opinion of O'Melveny & ▇▇▇▇▇ LLP, special counsel to the Seller,
dated the Closing Date, substantially to the effect (with such changes and
modifications as the Purchaser may approve and subject to such counsel's
reasonable qualifications) that this Agreement and the Indemnification Agreement
are valid, legal and binding agreements of the Seller, enforceable against the
Seller in accordance with their respective terms.
Such opinion may express its reliance as to factual matters on, among other
things specified in such opinion, the representations and warranties made by,
and on certificates or other documents furnished by officers of, the parties to
this Agreement and the opinion of in-house senior counsel to the Seller referred
to in clause (f) above.
In rendering the opinion expressed above, such counsel may limit such
opinions to matters governed by the laws of the State of New York and the
federal laws of the United States of America.
(h) Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser or
the Seller's execution and delivery of, or performance under, this Agreement.
(i) A letter from Deloitte & Touche LLP, certified public accountants,
dated the date hereof, to the effect that they have performed certain specified
procedures as a result of which they determined that certain information of an
accounting, financial or statistical nature set forth in the Memorandum and the
Prospectus Supplement agrees with the records of the Seller.
17
(j) Such further certificates, opinions and documents as the Purchaser may
reasonably request.
(k) An officer's certificate of the Purchaser, dated as of the Closing
Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(l) Such other certificates of the Purchaser's officers or others and such
other documents to evidence fulfillment of the conditions set forth in this
Agreement as the Seller or its counsel may reasonably request.
(m) An executed ▇▇▇▇ of Sale in the form attached hereto as Exhibit 4.
SECTION 8. Costs. The Seller shall pay the Purchaser the costs and expenses
as previously agreed to by the Seller and the Purchaser.
SECTION 9. Notices. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if (a)
personally delivered, (b) mailed by registered or certified mail, postage
prepaid and received by the addressee, (c) sent by express courier delivery
service and received by the addressee, or (d) transmitted by telex or facsimile
transmission (or any other type of electronic transmission agreed upon by the
parties) and confirmed by a writing delivered by any of the means described in
(a), (b) or (c), if (i) to the Purchaser, addressed to and Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., telecopy
number: (▇▇▇) ▇▇▇-▇▇▇▇ (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a
copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq., telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇.
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which 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 unenforceable or is held to be void or
unenforceable in any 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
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 11. Further Assurances. The Seller and the Purchaser each agree to
execute and deliver such instruments and take such actions as the other may,
from time to time, reasonably request in order to effectuate the purpose and to
carry out the terms of this Agreement and the Pooling and Servicing Agreement.
18
SECTION 12. Survival. Each party hereto agrees that the representations,
warranties and agreements made by it herein and in any certificate or other
instrument delivered pursuant hereto shall be deemed to be relied upon by the
other party, notwithstanding any investigation heretofore or hereafter made by
the other party or on its behalf, and that the representations, warranties and
agreements made by such other party herein or in any such certificate or other
instrument shall survive the delivery of and payment for the Mortgage Loans and
shall continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding subsequent
termination of this Agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Benefits of Mortgage Loan Purchase Agreement. This Agreement
shall inure to the benefit of and shall be binding upon the Seller, the
Purchaser and their respective successors, legal representatives, and permitted
assigns and nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person except that the rights and obligations of the
Purchaser pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12
hereof may be assigned to the Trustee as may be required to effect the purposes
of the Pooling and Servicing Agreement and, upon such assignment, the Trustee
shall succeed to the rights and obligations hereunder of the Purchaser. No owner
of a Certificate issued pursuant to the Pooling and Servicing Agreement shall be
deemed a successor because of such ownership.
SECTION 15. Modifications. (a) Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought. (b)
(b) The provisions of Sections 2, 4(a) (other than clause (vii), 5, 11, 12,
14 and 15 of this Agreement may not be changed in any manner which would have a
material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
SECTION 16. Miscellaneous. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in
19
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. The rights and obligations of the Seller under this Agreement shall not
be assigned by the Seller without the prior written consent of the Purchaser,
except that any person into which the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Seller is a party, or any person succeeding to the entire business of the
Seller shall be the successor to the Seller hereunder. This Agreement shall be
continuously maintained as an official record of the Seller from and after the
time of its execution.
20
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this Agreement
to be executed by their respective duly authorized officers as of the date
first above written.
BEAR, ▇▇▇▇▇▇▇ FUNDING, INC.
By: /s/ J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
21
Schedule A
Releases of Mortgaged Property
None
Schedule B
List of Junior Liens
------------------------- -------------------------------------------------
Loan No. Explanation
------------------------- -------------------------------------------------
17877 There is subordinate secured debt on the
Property that is held by a third party in the
approximate amount of $2,054,000.
25589 There is subordinate secured debt on the Property
that is held by the general partner of the
Borrower in the approximate amount of $2,435,318.
25118 The Borrower is permitted to encumber the
Property to secure subordinate debt in an amount
such that total debt (including the Mortgage
Loan) does not exceed 30% of the then-current
value of the Property.
------------------------- -------------------------------------------------
Schedule C
List of Loans with Ground Leases
with terms less than 10 years
beyond the Stated Maturity Date
None
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
1-1
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
(Representations and Warranties with respect to Bear ▇▇▇▇▇▇▇ Loans)
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained.
3. Payment Record. No scheduled payment of principal and interest under any
Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph (13) below, enforceable first priority lien
upon the related Mortgaged Property, which includes all buildings located
thereon and all fixtures thereto, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, and (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use of the Mortgaged Property or the
current ability of the Mortgaged Property to generate operating income
sufficient to service the Mortgage Loan debt (the foregoing items (a) through
(d) being herein referred to as the "Permitted Encumbrances"). The related
assignment of such Mortgage executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Mortgage. Such Mortgage, together with
any separate security agreements, chattel mortgages or equivalent instruments,
establishes and creates a valid and, subject to the exceptions set forth in
paragraph (13) below, enforceable security interest in favor
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of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. A
Uniform Commercial Code financing statement has been filed and/or recorded in
all places necessary to perfect a valid security interest in such personal
property, and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property
and any personal property leases applicable to such personal property.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect such
perfection.
5. Assignment of Leases and Rents. The Assignment of Leases set forth in
the Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and, subject to the exceptions set
forth in paragraph (13) below, enforceable first priority lien and first
priority security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full right
to assign the same. The related assignment of any Assignment of Leases, not
included in a Mortgage, executed and delivered in favor of the Trustee is in
recordable form and constitutes a legal, valid and binding assignment,
sufficient to convey to the assignee named therein all of the assignor's right,
title and interest in, to and under such Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in material part,
and the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in material part, nor has any instrument been executed
that would effect any such satisfaction, cancellation, subordination, rescission
or release, except for any partial reconveyances of real property that do not
materially adversely affect the value of the property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File.
7. Condition of Property; Condemnation. Except as set forth in an
engineering report prepared in connection with the origination of the related
Mortgage Loan, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage that would materially and adversely affect its value as
security for the related Mortgage Loan. The Seller has received no notice of the
commencement of any proceeding for the condemnation of all or any material
portion of any Mortgaged Property. To the Seller's knowledge (based on surveys
and/or title insurance obtained in connection with the origination of the
Mortgage Loans), as of the date of the origination of each Mortgage Loan, all of
the material improvements on the related Mortgaged Property which were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and adversely
affect the value or marketability of such Mortgaged Property, and no
improvements on adjoining properties materially encroached upon such Mortgaged
Property so as to materially and adversely affect the value or marketability of
such
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Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) lender's title insurance policy or
a ▇▇▇▇-up title insurance commitment (on which the required premium has been
paid) which evidences such title insurance policy (the "Title Policy") in the
original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted
Encumbrances. Each Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) is in full force and effect, all premiums thereon have been
paid and no material claims have been made thereunder and no claims have been
paid thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (13) below) such as
to render the rights and remedies of the holder thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby. Each Mortgage Loan
contains a "due on sale" clause, which provides for the acceleration of the
payment of the unpaid principal balance of the Mortgage Loan if, without prior
written consent of the holder of the Mortgage, the property subject to the
Mortgage or any material portion thereof, is transferred, sold or encumbered
other than for the junior liens listed on Schedule B hereto; provided, however,
that certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
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12. Environmental Conditions. An environmental site assessment was
performed with respect to each Mortgaged Property in connection with the
origination of the related Mortgage Loan, a report of each such assessment (an
"Environmental Report") has been delivered to the Purchaser, and the Seller has
no knowledge of any material and adverse environmental condition or circumstance
affecting any Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all applicable federal,
state and local environmental laws and regulations. Where such assessment
disclosed the existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance, or (ii) the related Mortgagor was required either to provide
additional security which was deemed to be sufficient by the originator to
remediate the problem and/or to obtain an operations and maintenance plan.
13. Loan Document Status. Each Mortgage Note, Mortgage and other document
conveyed to the Depositor with respect to a Mortgage Loan that evidences or
secures such Mortgage Loan and was executed by or on behalf of the related
Mortgagor is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other document.
14. Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage, to be insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against by persons operating like properties in the locality of the Mortgaged
Property in an amount not less than the lesser of the principal balance of the
related Mortgage Loan and the replacement cost of the Mortgaged Property, with
no deduction for depreciation, and not less than the amount necessary to avoid
the operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in an
amount at least equal to six months of operations of the Mortgaged Property; (c)
a flood insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards); and (d) a comprehensive
general liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause that
names the mortgagee (in its capacity as mortgagee or loss payee, as applicable)
as an additional insured and requires prior notice to the holder of the Mortgage
of termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes
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the holder of the Mortgage to maintain such insurance at the Mortgagor's cost
and expense and to seek reimbursement therefor from such Mortgagor. Each
Mortgage provides that casualty insurance proceeds will be applied either to the
restoration or repair of the related Mortgaged Property or to the reduction of
the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no delinquent
or unpaid taxes or assessments (including assessments payable in future
installments), or other outstanding charges affecting any Mortgaged Property
which are or may become a lien of priority equal to or higher than the lien of
the related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest and/or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan is
secured in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), of the related
Mortgagor's interest in the Ground Lease but is not secured by the related fee
interest in such Mortgaged Property (the "Fee Interest"):
(a) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor)
permits the current use of the Mortgaged Property and permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan,
with the exception of material changes reflected in written instruments
that are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon notice
to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing Date)
and, in the event that it is so assigned, is further assignable by the
Purchaser and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor, or if such lessor's
consent is required it cannot be unreasonably withheld;
(d) Such Ground Lease is in full force and effect and no
material amendment to such Ground Lease is binding on mortgagee unless
the mortgagee has consented thereto, and the Seller has received no
notice that an event of default has occurred thereunder, and, to the
Seller's knowledge, there exists no condition that, but for the passage
of time or the giving of notice, or both, would result in an event of
default under the terms of such Ground Lease;
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(e) Such Ground Lease, or an estoppel letter or other
agreement, (A) requires the lessor under such Ground Lease to give
notice of any default by the lessee to the holder of the Mortgage; and
(B) provides that no notice of termination given under such Ground
Lease is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the Ground
Lease.
(f) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice
of any such default, before the lessor thereunder may terminate such
Ground Lease;
(g) Except as set forth on Schedule C, such Ground Lease has
an original term (including any extension options set forth therein)
which extends not less than ten years beyond the Maturity Date of the
related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(i) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located.
18. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date required to be deposited or paid
have been so deposited or paid.
19. LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance of
the Mortgage Loan or (ii) at the Closing Date at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described
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in clauses (a)(i) and (a)(ii) of this paragraph (13) shall be made on a pro rata
basis in accordance with the fair market values of the Mortgaged Properties
securing such cross-collateralized Mortgage Loans); or (b) substantially all the
proceeds of such Mortgage Loan were used to acquire, improve or protect the real
property which served as the only security for such Mortgage Loan (other than a
recourse feature or other third party credit enhancement within the meaning of
Treasury Regulations Section 1.860G-2(a)(1)(ii)).
20. Mortgage Loan Modifications. Any Mortgage Loan that was "significantly
modified" prior to the Closing Date so as to result in a taxable exchange under
Section 1001 of the Code either (a) was modified as a result of the default or
reasonably foreseeable default of such Mortgage Loan or (b) satisfies the
provisions of either clause (a)(i) of paragraph (19) above (substituting the
date of the last such modification for the date the Mortgage Loan was
originated) or clause (a)(ii) of paragraph (19) above, including the proviso
thereto.
21. Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
22. No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, and no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage except, in each case, for liens insured against by the Title Policy
referred to herein.
23. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24. Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25. Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release all or
any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under the
related Mortgage Loan or in connection with the defeasance provisions of the
related Note and Mortgage. The Mortgages relating to those Mortgage Loans
identified on Schedule A require the mortgagee to grant releases of portions of
the related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and (b) the payment of a release price set forth
therein and prepayment consideration in connection therewith.
26. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
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27. No Material Default. To the Seller's best knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and the related Mortgaged Property;
provided, however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs (3), (7),
(12), (14), (15), (16) and (17) hereof.
28. Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
29. Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination.
30. Junior Liens. Only Mortgage Loans identified on Schedule B permit the
related Mortgaged Property to be encumbered by a lien junior to the lien of the
related Mortgage and describes any requirements relating to debt service
coverage or similar criteria needed to be satisfied to obtain such junior lien.
Except as otherwise set forth in Schedule B, the Seller has no knowledge that
any of the Mortgaged Properties is encumbered by any lien junior to or in parity
with the lien of the related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgage Loan or the
validity or enforceability of the related Mortgage or that might materially and
adversely affect the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended.
32. Servicing. The servicing and collection practices used by the Seller
have been in all material respects legal, proper and prudent and have met
customary industry standards.
33. Licenses and Permits. To the Seller's knowledge, based on due diligence
that it customarily performs in the origination of comparable mortgage loans, as
of the date of origination of each Mortgage Loan, the related Mortgagor was in
possession of all material licenses, permits and franchises required by
applicable law for the ownership and operation of the related Mortgage Property
as it was then operated.
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34. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by any collateral (including any mortgage) that is not included in the
Trust.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-Off Date Principal Balance in excess of $20 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any assets other than those related to its interest in and operation of
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, and that it holds itself out as a legal entity, separate
and apart from any other person.
36. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes the non-recourse obligations of
the related obligors thereon except that either (i) such provision does not
apply in the case of fraud by the Mortgagor or (ii) such documents provide that
the Mortgagor shall be liable to the holder of the Mortgage Loan for losses
incurred as a result of fraud by the Mortgagor.
37. Defeasance. Each Mortgage Loan which grants the related Mortgagor the
option to obtain the release of the lien of the Mortgage on the related
Mortgaged Property by substituting U.S. Treasury securities for such Mortgaged
Property, as collateral for the related Mortgage Notes (i) does not, as a
factual matter, permit defeasance prior to the date such defeasance would be
permitted under the applicable REMIC provisions and (ii) requires the delivery
of a Rating Agency Confirmation or requires that (A) the replacement collateral
consist of U.S. Treasury securities in an amount sufficient to make all
scheduled payments under the Mortgage Note when due, as certified by an
independent accounting firm, (B) the Mortgage Loan be assumed by a
single-purpose entity that is established for the purpose of holding Defeasance
Collateral with respect to one or more Mortgage Loans, and (C) counsel provide
an opinion that the holder of the Mortgage Loan has a perfected security
interest in such collateral prior to any other claim or interest and (iii)
requires the related Mortgagor pay all of the reasonable costs and expenses
incurred in connection with the exercise of such options; and
38. SMMEA Qualification. Each Mortgage Loan was originated by a savings and
loan association, savings bank, commercial bank, credit union, insurance
company, or similar institution which is supervised and examined by a Federal or
State authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National Housing Act.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered on this _________ day
of _____, 1999.
SELLER: BEAR, ▇▇▇▇▇▇▇ FUNDING, INC.
By:
---------------------------------
Name: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
PURCHASER: BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC.
By:
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
EXHIBIT 3
PRICING FORMULATION
3-1
EXHIBIT 4
▇▇▇▇ OF SALE
1. PARTIES. The parties to this ▇▇▇▇ of Sale are the following:
Seller: Bear, ▇▇▇▇▇▇▇ Funding, Inc.
Purchaser: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
2. SALE. For value received, the Seller hereby conveys to the Purchaser,
without recourse, all right, title and interest in and to the Mortgage Loans
identified on Exhibit 1 (the "Mortgage Loan Schedule") to the Mortgage Loan
Purchase Agreement, dated as of July 1, 1999 (the "Mortgage Loan Purchase
Agreement"), between the Seller and the Purchaser and all of the following
property:
(a) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage Loan
Schedule, including the related Mortgage Notes, Mortgages, security
agreements, and title, hazard and other insurance policies, all
distributions with respect thereto payable on and after the Cut-off
Date, and the Mortgage Files;
(b) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property, and other rights arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other persons with respect to, all or any
part of the property described in clause (a) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount); and
(c) All cash and non-cash proceeds of the property described
in clauses (a) and (b) above (but excluding the Purchase Price paid by
the Purchaser to the Seller).
3. PURCHASE PRICE. The amount set forth in the letter between the Seller
and the Purchaser dated the Closing Date.
4. DEFINITIONS. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
▇▇▇▇ of Sale to be duly executed and delivered on this _________ day of _____,
1999.
SELLER: BEAR, ▇▇▇▇▇▇▇ FUNDING, INC.
By:
------------------------------
Name: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
PURCHASER: BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC.
By:
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
SCHEDULE I
LOAN
NUMBER LOAN NAME ADDRESS CITY STATE
------------------------------------------------------------------------------------------------------------------------------------
5502 205 Place Shopping Center ▇▇▇▇-▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
5504 ▇▇▇▇▇▇▇ Center 12230-12400 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇. & ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇. & 8040 Roosevelt Blvd. Philadelphia PA
9122 Torrey Reserve North Court 11622-11682 El Camino Real San Diego CA
9419 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ Hilltop Medical Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Waverly Elementary School ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Crondall Corner ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Forest Plaza ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, 645 & ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Oaks Center ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Gary's Plaza Shopping Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Woodlane Square Shopping Center ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ Glencoe Building ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ Redwood Studios ▇▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ 521-527 & ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 521-527 & ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Gaithersburg Storehouse ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ State Tower Building ▇▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Plymouth Square Shopping Center Ridge Pike/▇▇▇▇▇▇ ▇▇▇▇ Plymouth Meeting PA
17718 Homewood Suites ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ St. Jude's Health Complex 433 & ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Ruxton Tower ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ All American Mini Storage ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Barnegat Mini-Storage ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Hidden Valley Apartments ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Willow Park Apartments ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Vagabond Inn Hayward ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Best Western - Lake ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Business Center 7100 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Road Glenn Dale MD
18173 Miracle Mile Mobile Home Park ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ Albertson's Marketplace ▇▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ Piney Orchard Market Place ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Lochwood Portfolio ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Sunrise Shopping Center ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Village Walk Shopping Center ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Quebec House Apartments ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Pecan Park Place ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Trumbull Medical Arts Center ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Crystal Tree Apartments ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Parkland Green Apartments 15000, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Shakespeare & Sherwood Apartments ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Vagabond Portfolio
25423 Holiday Inn Express ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Southgate Mini Storage ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Diho Plaza ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Regent Square Apartments ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Inland Portfolio
25508 Eckerd's ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Sun Suites
25559 Harborwood West Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ The Craft House Apartments ▇▇-▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ The Growth Companies Portfolio
25675 ▇▇▇▇▇▇▇'▇ Ridge Apartments ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Interpointe Shopping Center ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ Northfield Estates ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ House Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ Mayfair House Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ San Jacinto Court Shopping Center ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Ashford Court Shopping Center ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ Parkvale Medical Office ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
STATED
ORIGINAL
TERM TO
LOAN GROSS MORTGAGE ADMINISTRATIVE NET MORTGAGE MATURITY
NUMBER ZIP CODE RATE COST RATE RATE ORIGINAL BALANCE CUT-OFF BALANCE (MOS.)
------------------------------------------------------------------------------------------------------------------------------
5502 97216 7.4600% 0.053% 7.4070% $7,850,000.00 $7,839,854.99 120
5504 97015 7.4600% 0.053% 7.4070% 4,950,000.00 4,943,602.83 120
8643 19152 9.0000% 0.053% 8.9470% 3,000,000.00 2,997,324.11 120
9122 92130 7.5550% 0.053% 7.5020% 18,300,000.00 18,286,567.59 120
9419 70364 7.3850% 0.053% 7.3320% 2,850,000.00 2,811,961.60 120
9675 11220 8.6550% 0.053% 8.6020% 2,725,000.00 2,720,493.82 120
11101 92101 8.0500% 0.053% 7.9970% 900,000.00 892,961.41 180
11134 94806 8.0400% 0.053% 7.9870% 4,100,000.00 4,092,679.96 120
11505 11212 8.0600% 0.053% 8.0070% 2,500,000.00 2,471,050.70 120
12052 21117 7.7300% 0.053% 7.6770% 3,750,000.00 3,745,478.48 120
12099 94301 8.2250% 0.053% 8.1720% 2,925,000.00 2,923,125.28 120
12101 18504 8.0850% 0.053% 8.0320% 3,200,000.00 3,190,821.90 180
12130 10016 6.7100% 0.053% 6.6570% 6,400,000.00 6,352,555.92 120
16398 19446 8.1550% 0.053% 8.1020% 3,140,000.00 3,136,619.30 120
16416 80606 8.7050% 0.053% 8.6520% 3,450,000.00 3,444,785.64 120
16465 92130 7.5550% 0.053% 7.5020% 950,000.00 949,302.69 120
16953 90292 7.4000% 0.053% 7.3470% 1,700,000.00 1,695,510.77 120
16958 90292 7.4950% 0.053% 7.4420% 2,500,000.00 2,493,554.59 120
17154 10011 7.1600% 0.053% 7.1070% 6,500,000.00 6,490,945.63 120
17553 20878 7.4000% 0.053% 7.3470% 2,350,000.00 2,336,206.16 120
17583 13202 8.9900% 0.053% 8.9370% 4,950,000.00 4,947,290.54 120
17660 19428 7.4500% 0.053% 7.3970% 15,300,000.00 15,280,176.76 120
17718 37421 8.7300% 0.053% 8.6770% 4,250,000.00 4,236,423.75 120
17875 92835 7.4500% 0.053% 7.3970% 4,875,000.00 4,855,796.63 120
17877 10023 6.8250% 0.053% 6.7720% 7,650,000.00 7,650,000.00 120
17923 91711 8.1700% 0.053% 8.1170% 1,675,000.00 1,671,944.74 120
17927 08005 8.2650% 0.053% 8.2120% 1,400,000.00 1,396,064.59 120
17961 55033 7.2500% 0.053% 7.1970% 1,500,000.00 1,498,829.86 120
17962 55429 7.2500% 0.053% 7.1970% 2,100,000.00 2,098,361.80 120
18041 10007 7.3900% 0.053% 7.3370% 25,500,000.00 25,466,456.83 120
18066 94541 8.4600% 0.053% 8.4070% 2,300,000.00 2,281,285.13 120
18113 28031 8.9200% 0.053% 8.8670% 3,700,000.00 3,690,814.53 120
18137 20769 7.8300% 0.053% 7.7770% 9,000,000.00 8,989,428.78 120
18173 89121 7.1300% 0.053% 7.0770% 6,500,000.00 6,485,527.78 120
18332 90808 7.4000% 0.053% 7.3470% 8,700,000.00 8,677,025.73 120
18346 21113 7.7400% 0.053% 7.6870% 2,800,000.00 2,798,019.80 120
25024 02127 8.5000% 0.053% 8.4470% 1,255,000.00 1,253,783.98 120
25069 39211 8.1200% 0.053% 8.0670% 7,470,000.00 7,461,880.42 120
25078 43701 8.1600% 0.053% 8.1070% 1,750,000.00 1,748,207.21 120
25117 06437 7.6400% 0.053% 7.5870% 2,500,000.00 2,498,196.02 120
25118 20008 7.0200% 0.053% 6.9670% 6,000,000.00 6,000,000.00 60
25144 77469 8.1000% 0.053% 8.0470% 2,300,000.00 2,297,620.60 180
25165 06611 7.5800% 0.053% 7.5270% 3,800,000.00 3,795,723.63 120
25195 10012-3351 7.8000% 0.053% 7.7470% 3,000,000.00 3,000,000.00 180
25271 93706 7.4600% 0.053% 7.4070% 5,000,000.00 5,000,000.00 120
25312 53151 7.8000% 0.053% 7.7470% 4,800,000.00 4,796,646.22 120
25352 06615 7.3350% 0.053% 7.2820% 2,500,000.00 2,498,082.47 120
25387 8.9450% 0.053% 8.8920% 9,340,000.00 9,331,592.45 120
25423 84116 8.7200% 0.053% 8.6670% 4,100,000.00 4,100,000.00 120
25445 94558 7.9700% 0.053% 7.9170% 2,150,000.00 2,150,000.00 120
25451 77036 7.9500% 0.053% 7.8970% 3,125,000.00 3,121,687.28 120
25479 10017 7.8900% 0.053% 7.8370% 1,550,000.00 1,548,936.53 120
25485 53715 7.4050% 0.053% 7.3520% 2,200,000.00 2,197,453.73 120
25489 6.8650% 0.053% 6.8120% 57,450,000.00 57,450,000.00 60
25508 13021 7.9700% 0.053% 7.9170% 2,200,000.00 2,197,675.41 120
25557 8.8600% 0.053% 8.8070% 15,640,000.00 15,640,000.00 120
25559 98335 7.5300% 0.053% 7.4770% 3,000,000.00 3,000,000.00 120
25577 80206 8.2400% 0.053% 8.1870% 3,500,000.00 3,500,000.00 120
25589 19106-4517 7.7750% 0.053% 7.7220% 3,435,000.00 3,432,587.81 120
25609 7.4500% 0.053% 7.3970% 4,775,000.00 4,775,000.00 120
25675 20904 7.4150% 0.053% 7.3620% 4,000,000.00 3,996,980.53 120
25714 84115-2513 7.6600% 0.053% 7.6070% 5,200,000.00 5,196,262.78 120
25742 55057 7.7000% 0.053% 7.6470% 1,300,000.00 1,298,565.03 120
25764 20748 6.9550% 0.053% 6.9020% 16,000,000.00 15,986,768.04 120
25959 22042 6.9550% 0.053% 6.9020% 6,000,000.00 5,995,038.02 120
26031 77521 8.6150% 0.053% 8.5620% 5,550,000.00 5,550,000.00 120
26032 77077 8.5200% 0.053% 8.4670% 2,390,000.00 2,388,558.08 120
26174 85031 7.5600% 0.053% 7.5070% 3,300,000.00 3,296,274.35 120
REMAINING
TERM TO ORIGINAL
LOAN MATURITY AMORTIZATION INTEREST ONLY FIRST PAYMENT
NUMBER (MOS.) MATURITY DATE ARD DATE ARD RATE STEP (BPS) (MOS.) MONTHS DATE
------------------------------------------------------------------------------------------------------------------------------
5502 118 05/01/09 360 0 06/01/99
5504 118 05/01/09 360 0 06/01/99
8643 119 06/01/09 300 0 07/01/99
9122 119 06/01/09 360 0 07/01/99
9419 108 07/01/08 300 0 08/01/98
9675 118 05/01/09 300 0 06/01/99
11101 167 06/01/13 360 0 07/01/98
11134 117 04/01/09 360 0 05/01/99
11505 113 12/01/08 240 0 01/01/99
12052 118 05/01/09 360 0 06/01/99
12099 119 06/01/09 360 0 07/01/99
12101 179 06/01/14 180 0 07/01/99
12130 111 10/01/08 360 0 11/01/98
16398 118 05/01/09 360 0 06/01/99
16416 117 04/01/09 360 0 05/01/99
16465 119 06/01/09 360 0 07/01/99
16953 116 03/01/09 360 0 04/01/99
16958 116 03/01/09 360 0 04/01/99
17154 118 05/01/09 360 0 06/01/99
17553 115 02/01/09 300 0 03/01/99
17583 119 06/01/09 200 360 0 07/01/99
17660 118 05/01/09 360 0 06/01/99
17718 117 04/01/09 276 0 05/01/99
17875 117 04/01/09 276 0 05/01/99
17877 116 03/01/09 0 120 04/01/99
17923 118 05/01/09 300 0 06/01/99
17927 117 04/01/09 300 0 05/01/99
17961 119 06/01/09 360 0 07/01/99
17962 119 06/01/09 360 0 07/01/99
18041 118 05/01/09 360 0 06/01/99
18066 115 02/01/09 240 0 03/01/99
18113 117 04/01/09 300 0 05/01/99
18137 118 05/01/09 360 0 06/01/99
18173 118 05/01/09 300 0 06/01/99
18332 116 03/01/09 360 0 04/01/99
18346 119 06/01/09 360 0 07/01/99
25024 119 06/01/09 300 0 07/01/99
25069 118 05/01/09 360 0 06/01/99
25078 119 06/01/09 300 0 07/01/99
25117 119 06/01/09 360 0 07/01/99
25118 59 06/01/04 0 60 07/01/99
25144 179 06/01/14 300 0 07/01/99
25165 119 06/01/09 300 0 07/01/99
25195 180 07/01/14 300 0 08/01/99
25271 120 07/01/09 300 0 08/01/99
25312 119 06/01/09 360 0 07/01/99
25352 119 06/01/09 360 0 07/01/99
25387 119 06/01/09 300 0 07/01/99
25423 120 07/01/09 300 0 08/01/99
25445 120 07/01/09 300 0 08/01/99
25451 119 06/01/09 300 0 07/01/99
25479 119 06/01/09 360 0 07/01/99
25485 119 06/01/09 300 0 07/01/99
25489 59 06/01/04 0 60 07/01/99
25508 119 06/01/09 300 0 07/01/99
25557 120 07/01/09 300 0 08/01/99
25559 120 07/01/09 360 0 08/01/99
25577 120 07/01/09 360 0 08/01/99
25589 119 06/01/09 360 0 07/01/99
25609 120 07/01/09 360 0 08/01/99
25675 119 06/01/09 360 0 07/01/99
25714 119 06/01/09 360 0 07/01/99
25742 119 06/01/09 300 0 07/01/99
25764 119 06/01/09 360 0 07/01/99
25959 119 06/01/09 360 0 07/01/99
26031 120 07/01/09 360 0 08/01/99
26032 119 06/01/09 360 0 07/01/99
26174 119 06/01/09 300 0 07/01/99
DEBT
SERVICE INTEREST REAL
LOAN COVERAGE ACCRUAL PROPERTY LIEN
NUMBER MONTHLY P&I APPRAISED VALUE CUT-OFF LTV RATIO METHOD INTEREST POSITION CALL PROTECTION
-----------------------------------------------------------------------------------------------------------------------------------
5502 $54,673 $13,200,000 59.39% 1.60x Actual/360 Fee First Defeasance
5504 34,475.64 8,200,000 60.29% 1.59 Actual/360 Fee First Defeasance
8643 25,175.89 4,700,000 63.77% 1.34 Actual/360 Fee First Defeasance
9122 128,646.16 28,400,000 64.39% 1.49 Actual/360 Fee First Defeasance
9419 20,848.52 3,800,000 74.00% 1.42 Actual/360 Fee First Defeasance
9675 22,227.80 4,100,000 66.35% 1.34 Actual/360 Fee First Defeasance
11101 6,635.28 1,700,000 52.53% 1.71 Actual/360 Fee First Defeasance
11134 30,198.75 6,000,000 68.21% 1.38 Actual/360 Fee First Defeasance
11505 21,004.45 4,750,000 52.02% 1.39 Actual/360 Fee First Defeasance
12052 26,813.65 5,300,000 70.67% 1.43 Actual/360 Fee First Defeasance
12099 21,923.16 4,400,000 66.43% 1.26 Actual/360 Fee First Defeasance
12101 30,738.10 9,100,000 35.06% 1.78 Actual/360 Fee First Defeasance
12130 41,340.25 12,000,000 52.94% 1.70 Actual/360 Fee First Defeasance
16398 23,380.39 4,900,000 64.01% 1.45 Actual/360 Fee First Defeasance
16416 27,030.36 4,900,000 70.30% 1.34 Actual/360 Fee First Defeasance
16465 6,678.35 1,375,000 69.04% 1.49 Actual/360 Fee First Defeasance
16953 11,770.46 2,650,000 63.98% 1.83 Actual/360 Fee First Defeasance
16958 17,471.80 4,250,000 58.67% 1.57 Actual/360 Fee First Defeasance
17154 43,945.36 13,300,000 48.80% 1.83 Actual/360 Fee First Defeasance
17553 17,213.72 4,100,000 56.98% 1.84 Actual/360 Fee First Defeasance
17583 39,793.21 8,000,000 61.84% 1.36 Actual/360 Fee First Defeasance
17660 106,456.47 22,500,000 67.91% 1.48 Actual/360 Fee First Defeasance
17718 35,754.55 6,700,000 63.23% 1.56 Actual/360 Fee First Defeasance
17875 36,962.99 8,200,000 59.22% 1.48 Actual/360 Fee First Defeasance
17877 44,113.67 20,500,000 37.32% 2.15 Actual/360 Fee First Defeasance
17923 13,117.12 2,700,000 61.92% 1.38 Actual/360 Fee First Defeasance
17927 11,052.34 3,230,000 43.22% 1.86 Actual/360 Fee First Defeasance
17961 10,232.64 4,550,000 32.94% 3.18 Actual/360 Fee First Defeasance
17962 14,325.70 10,100,000 20.78% 4.45 Actual/360 Fee First Defeasance
18041 176,382.93 50,000,000 50.93% 1.65 Actual/360 Fee First Defeasance
18066 19,901.74 4,100,000 55.64% 1.55 Actual/360 Leasehold First Defeasance
18113 30,847.82 5,700,000 64.75% 1.59 Actual/360 Fee First Defeasance
18137 64,975.36 12,600,000 71.34% 1.41 Actual/360 Fee First Defeasance
18173 46,481.10 11,700,000 55.43% 1.94 Actual/360 Fee First Defeasance
18332 60,237.04 11,600,000 74.80% 1.38 Actual/360 Fee First Defeasance
18346 20,040.20 4,000,000 69.95% 1.51 Actual/360 Fee First Defeasance
25024 10,105.60 2,300,000 54.51% 1.54 Actual/360 Fee First Defeasance
25069 55,438.39 11,700,000 63.78% 1.28 Actual/360 Fee First Defeasance
25078 13,692.79 2,590,000 67.50% 1.41 Actual/360 Fee First Defeasance
25117 17,720.65 4,100,000 60.93% 1.57 Actual/360 Fee First Defeasance
25118 35,100.00 34,000,000 17.65% 7.37 30/360 Leasehold First Defeasance
25144 17,904.41 3,550,000 64.72% 1.39 Actual/360 Fee First Defeasance
25165 28,279.70 7,175,000 52.90% 1.77 Actual/360 Fee First Defeasance
25195 22,758.43 6,800,000 44.12% 1.65 Actual/360 Fee First Defeasance
25271 36,819.57 9,600,000 52.08% 1.52 Actual/360 Fee First Defeasance
25312 34,553.78 6,000,000 79.94% 1.31 Actual/360 Fee First Defeasance
25352 17,198.78 5,800,000 43.07% 1.93 Actual/360 Fee First Defeasance
25387 78,029.47 13,850,000 67.38% 1.55 Actual/360 Fee First Defeasance
25423 33,624.36 5,900,000 69.49% 1.50 Actual/360 Fee First Defeasance
25445 16,551.34 4,200,000 51.19% 1.68 Actual/360 Fee First Defeasance
25451 24,015.84 4,300,000 72.60% 1.35 Actual/360 Fee First Defeasance
25479 11,254.72 2,400,000 64.54% 1.39 Actual/360 Fee First Defeasance
25485 16,122.10 3,350,000 65.60% 1.48 Actual/360 Fee First Defeasance
25489 328,661.88 122,570,000 46.87% 2.48 30/360 Fee First Defeasance
25508 16,936.26 3,690,000 59.56% 1.41 Actual/360 Fee First Defeasance
25557 129,754.17 24,428,000 64.02% 1.56 Actual/360 Fee First Defeasance
25559 21,038.10 4,850,000 61.86% 1.45 Actual/360 Fee First Defeasance
25577 26,269.73 5,300,000 66.04% 1.35 Actual/360 Fee First Defeasance
25589 24,668.13 4,300,000 79.83% 1.29 Actual/360 Fee First Defeasance
25609 33,224.16 6,925,000 68.95% 1.53 Actual/360 Fee First Defeasance
25675 27,736.14 5,350,000 74.71% 1.35 Actual/360 Fee First Defeasance
25714 36,930.56 6,546,000 79.38% 1.39 Actual/360 Fee First Defeasance
25742 9,776.64 1,800,000 72.14% 1.48 Actual/360 Fee First Defeasance
25764 105,965.29 27,000,000 59.21% 1.76 Actual/360 Fee First Defeasance
25959 39,736.98 11,600,000 51.68% 1.98 Actual/360 Fee First Defeasance
26031 43,127.85 7,750,000 71.61% 1.26 Actual/360 Fee First Defeasance
26032 18,410.92 3,275,000 72.93% 1.26 Actual/360 Fee First Defeasance
26174 24,515.65 4,850,000 67.96% 1.52 Actual/360 Fee First Defeasance
EFFECTIVE FREE PREPAY
LOAN LOCKOUT PERIOD WINDOW
NUMBER (MOS.) (MOS.)
------------------------------------------------
5502 120 0
5504 120 0
8643 120 0
9122 120 0
9419 120 0
9675 120 0
11101 177 3
11134 120 0
11505 119 1
12052 120 0
12099 120 0
12101 180 0
12130 120 0
16398 120 0
16416 120 0
16465 120 0
16953 120 0
16958 120 0
17154 120 0
17553 119 1
17583 117 3
17660 117 3
17718 120 0
17875 120 0
17877 120 0
17923 117 3
17927 120 0
17961 120 0
17962 120 0
18041 117 3
18066 120 0
18113 120 0
18137 120 0
18173 120 0
18332 120 0
18346 120 0
25024 120 0
25069 120 0
25078 120 0
25117 120 0
25118 57 3
25144 180 0
25165 120 0
25195 180 0
25271 120 0
25312 120 0
25352 120 0
25387 120 0
25423 120 0
25445 120 0
25451 120 0
25479 120 0
25485 120 0
25489 59 1
25508 120 0
25557 120 0
25559 114 6
25577 120 0
25589 120 0
25609 120 0
25675 120 0
25714 120 0
25742 120 0
25764 119 1
25959 119 1
26031 120 0
26032 120 0
26174 120 0