EXHIBIT 10.2
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MORTGAGE LOAN PURCHASE AGREEMENT
between
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Seller
and
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of April 6, 2006
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TABLE OF CONTENTS
1. AGREEMENT TO PURCHASE..................................................3
2. CONVEYANCE OF MORTGAGE LOANS...........................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER................12
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER................................................................16
6. CLOSING...............................................................21
7. CLOSING DOCUMENTS.....................................................22
8. COSTS.................................................................25
9. NOTICES...............................................................25
10. SEVERABILITY OF PROVISIONS............................................25
11. FURTHER ASSURANCES....................................................25
12. SURVIVAL..............................................................25
13. GOVERNING LAW.........................................................26
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT..........................26
15. MISCELLANEOUS.........................................................26
16. ENTIRE AGREEMENT......................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Pricing Formulation
Exhibit 4 ▇▇▇▇ of Sale
Exhibit 5 Power of Attorney
Index of Defined Terms
Affected Loan(s)..................18
Agreement..........................2
Certificate Purchase Agreement.....2
Certificates.......................2
Closing Date.......................3
Collateral Information............11
Crossed Mortgage Loans............17
Defective Mortgage Loan...........17
Final Judicial Determination......20
Indemnification Agreement.........14
Initial Purchasers.................2
Master Servicer....................2
Material Breach...................16
Material Document Defect..........16
Memorandum.........................2
MERS...............................5
Mortgage File......................4
Mortgage Loan Schedule.............3
Mortgage Loans.....................2
Officer's Certificate..............8
Other Mortgage Loans...............2
Pooling and Servicing Agreement....2
Private Certificates...............2
Prospectus Supplement..............2
Public Certificates................2
Purchaser..........................2
Repurchased Loan..................18
Seller.............................2
Special Servicer...................2
Trust..............................2
Trustee............................2
Underwriters.......................2
Underwriting Agreement.............2
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MORTGAGE LOAN PURCHASE AGREEMENT
(▇▇▇▇▇ LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of April 6, 2006,
between ▇▇▇▇▇ Fargo Bank, National Association ("Seller") and Bear ▇▇▇▇▇▇▇
Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described herein. 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 April 1, 2006 between Purchaser, as depositor, ▇▇▇▇▇ Fargo Bank,
National Association, as master servicer (the "Master Servicer"), ARCap
Servicing, Inc., as special servicer (the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee") and ▇▇▇▇▇ Fargo Bank, National
Association, as paying agent and certificate registrar. In exchange for the
Mortgage Loans and certain other mortgage loans to be purchased by Purchaser
(collectively the "Other Mortgage Loans"), the Trust will issue to the Depositor
pass-through certificates to be known as Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates, Series
2006-TOP22 (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 A-3, Class A-AB, Class A-4, Class A-M and Class
A-J Certificates (the "Public Certificates") will be sold by Purchaser to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the "Underwriters"),
pursuant to an Underwriting Agreement, between Purchaser and the Underwriters,
dated April 6, 2006 (the "Underwriting Agreement"), and the Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class MM-NA, Class R-I, Class R-II and Class
R-III Certificates (the "Private Certificates") will be sold by Purchaser to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the "Initial
Purchasers") pursuant to a Certificate Purchase Agreement, between Purchaser and
the Initial Purchasers, dated April 6, 2006 (the "Certificate Purchase
Agreement"). The Underwriters will offer the Public Certificates for sale
publicly pursuant to a Prospectus dated March 31, 2006, as supplemented by a
Prospectus Supplement dated April 6, 2006 (together, the "Prospectus
Supplement") and the Initial Purchasers 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 dated April 6, 2006 (the
"Memorandum").
In consideration of the mutual agreements contained herein, Seller and Purchaser
hereby agree as follows:
1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and 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 Purchaser pursuant to the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is April 1, 2006.
The Mortgage Loans will have an aggregate principal balance as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not received, of $511,471,346. The sale of the
Mortgage Loans shall take place on April 20, 2006 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The purchase
price to be paid by Purchaser for the Mortgage Loans shall equal the amount set
forth as such purchase price on Exhibit 3 hereto. The purchase price shall be
paid to Seller by wire transfer in immediately available funds on the Closing
Date.
1.2 On the Closing Date, 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 Purchaser's rights under this Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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, Seller does hereby transfer,
assign, set over and otherwise convey to Purchaser, without recourse, except as
specifically provided herein all the right, title and interest of Seller, with
the understanding that a Servicing Rights Purchase and Sale Agreement, dated
April 1, 2006, will be executed by Seller and the Master Servicer, 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, Seller shall deliver to or on behalf of the Trustee, on behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the fifth
Business Day after the Closing Date, five limited powers of attorney
substantially in the form attached hereto as Exhibit 5 in favor of the Trustee
and the Special Servicer to empower the Trustee and, in the event of the failure
or incapacity of the Trustee, the Special Servicer, to submit for recording, at
the expense of Seller, any mortgage loan documents required to be recorded as
described in the Pooling and Servicing Agreement and any intervening assignments
with evidence of recording thereon that are required to be included in the
Mortgage Files (so long as original counterparts have previously been delivered
to the Trustee). Seller agrees to reasonably cooperate with the Trustee and the
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of attorney shall be
used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date
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that is 180 days following the delivery of notice of such absence to Seller, but
in no event earlier than 18 months from the Closing Date, and (ii) the date (if
any) on which such Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Trustee shall submit such documents, at Seller's expense, after the periods set
forth above, provided, however, the Trustee shall not submit such assignments
for recording if Seller produces evidence that it has sent any such assignment
for recording and certifies that Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, Seller shall deliver to or on behalf of the Trustee each of
the remaining documents or instruments specified in Section 2.2 hereof (with
such exceptions as are permitted by this Section 2) with respect to each
Mortgage Loan (each, a "Mortgage File"). (Seller acknowledges that the term
"without recourse" does not modify the duties of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to the Closing Date
are to be held by or on behalf of the Trustee in escrow on behalf of 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:
2.2.1 The original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP22, without recourse, representation or warranty" or
if the original Mortgage Note is not included therein, then a lost
note affidavit, with a copy of the Mortgage Note attached thereto;
2.2.2 The original Mortgage, with evidence of recording
thereon, and, if the Mortgage was executed pursuant to a power of
attorney, a certified true copy of the power of attorney certified
by the public recorder's office, with evidence of recording thereon
(if recording is customary in the jurisdiction in which such power
of attorney was executed), 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 with evidence of recording
thereon on or prior to the 45th day following the Closing Date
because of a delay caused by the public recording office where such
original Mortgage has been delivered for recordation or because such
original Mortgage has been lost, Seller shall deliver or cause to be
delivered to the Trustee a true and correct copy of such Mortgage,
together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of
Seller stating that such original Mortgage has been sent to the
appropriate public recording official for recordation or (ii) in the
case of an original Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
Mortgage is recorded that such copy is a true and complete copy of
the original recorded Mortgage;
2.2.3 The originals of all agreements modifying a Money Term
or other material modification, consolidation and extension
agreements, if any,
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with evidence of recording thereon, or if any such original
modification, consolidation or extension agreement has been
delivered to the appropriate recording office for recordation and
either has not yet been returned on or prior to the 45th day
following the Closing Date with evidence of recordation thereon or
has been lost after recordation, a true copy of such modification,
consolidation or extension certified by Seller together with (i) in
the case of a delay caused by the public recording office, an
Officer's Certificate of Seller stating that such original
modification, consolidation or extension agreement has been
dispatched or sent to the appropriate public recording official for
recordation or (ii) in the case of an original modification,
consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording
office where such document is recorded that such copy is a true and
complete copy of the original recorded modification, consolidation
or extension agreement, and the originals of all assumption
agreements, if any;
2.2.4 An original Assignment of Mortgage for each Mortgage
Loan, in form and substance acceptable for recording, signed by the
holder of record in favor of "LaSalle Bank National Association, as
Trustee for Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2006-TOP22,"
provided, if the related Mortgage has been recorded in the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no such assignments will be required to be submitted for
recording or filing and instead, Seller shall take all actions as
are necessary to cause the Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner
on the record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage
(except with respect to any Mortgage that has been recorded in the
name of MERS or its designees), if any, with evidence of recording
thereon or, if such original assignments of Mortgage have been
delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by
Seller, or in the case of an original blanket intervening assignment
of Mortgage retained by Seller, a copy thereof certified by Seller
or, if any original intervening assignment of Mortgage has not yet
been returned on or prior to the 45th day following the Closing Date
from the applicable recording office or has been lost, a true and
correct copy thereof, together with (i) in the case of a delay
caused by the public recording office, an Officer's Certificate of
Seller stating that such original intervening assignment of Mortgage
has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening
Assignment of Mortgage that has been lost after recordation, a
certification by the appropriate county recording office where such
assignment is recorded that such copy is a true and complete copy of
the original recorded intervening Assignment of Mortgage;
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2.2.6 If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of
recording thereon or, if such Assignment of Leases has not been
returned on or prior to the 45th day following the Closing Date from
the applicable public recording office, a copy of such Assignment of
Leases certified by Seller to be a true and complete copy of the
original Assignment of Leases submitted for recording, together with
(i) an original of each assignment of such Assignment of Leases with
evidence of recording thereon and showing a complete recorded chain
of assignment from the named assignee to the holder of record, and
if any such assignment of such Assignment of Leases has not been
returned from the applicable public recording office, a copy of such
assignment certified by Seller to be a true and complete copy of the
original assignment submitted for recording, and (ii) an original
assignment of such Assignment of Leases, in recordable form, signed
by the holder of record in favor of "LaSalle Bank National
Association, as Trustee for Bear ▇▇▇▇▇▇▇ Commercial Mortgage
Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series 2006-TOP22," which assignment may be effected in the related
Assignment of Mortgage, provided, if the related Mortgage has been
recorded in the name of MERS or its designee, no assignment of
Assignment of Leases in favor of the Trustee will be required to be
recorded or delivered and instead, Seller shall take all actions as
are necessary to cause the Trustee to be shown as the owner of the
related Mortgage on the record of MERS for purposes of the system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and shall deliver to the Master Servicer and the Special
Servicer evidence confirming that the Trustee is shown as the owner
on the record of MERS;
2.2.7 The original of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event
such original Title Insurance Policy has not been issued, an
original binder or actual title commitment or a copy thereof
certified by the title company with the original Title Insurance
Policy to follow within 180 days of the Closing Date or a
preliminary title report binding on the title company with an
original Title Insurance Policy to follow within 180 days of the
Closing Date;
2.2.9 (A) UCC financing statements (together with all
assignments thereof) and (B) UCC-2 or UCC-3 financing statements to
the Trustee executed and delivered in connection with the Mortgage
Loan, provided, if the related Mortgage has been recorded in the
name of MERS or its designee, no such financing statements will be
required to be recorded or delivered and instead, Seller shall take
all actions as are necessary to cause the Trustee to be shown as the
owner of the related Mortgage on the record of MERS for purposes of
the system of recording transfers of beneficial ownership of
mortgages maintained by MERS and shall deliver to the Master
Servicer and the Special Servicer evidence confirming that the
Trustee is shown as the owner on the record of MERS;
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2.2.10 Copies of the related ground lease(s), if any, to any
Mortgage Loan where the Mortgagor is the lessee under such ground
lease and there is a lien in favor of the mortgagee in such lease;
2.2.11 Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any
Intercreditor Agreement, and a copy (that is, not the original) of
the mortgage note evidencing the related B Note), if any, related to
any Mortgage Loan;
2.2.12 Either (A) the original of each letter of credit, if
any, constituting additional collateral for such Mortgage Loan,
which shall be assigned and delivered to the Trustee on behalf of
the Trust with a copy to be held by the Primary Servicer (or the
Master Servicer), and applied, drawn, reduced or released in
accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing Agreement or (B) the original of each letter of credit, if
any, constituting additional collateral for such Mortgage Loan,
which shall be held by the Primary Servicer (or the Master Servicer)
on behalf of the Trustee, with a copy to be held by the Trustee, and
applied, drawn, reduced or released in accordance with documents
evidencing or securing the applicable Mortgage Loan, the Pooling and
Servicing Agreement and the Primary Servicing Agreement (it being
understood that Seller has agreed (a) that the proceeds of such
letter of credit belong to the Trust, (b) to notify, on or before
the Closing Date, the bank issuing the letter of credit that the
letter of credit and the proceeds thereof belong to the Trust, and
to use reasonable efforts to obtain within 30 days (but in any event
to obtain within 90 days) following the Closing Date, an
acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Trustee) or a reissued letter of
credit and (c) to indemnify the Trust for any liabilities, charges,
costs, fees or other expenses accruing from the failure of Seller to
assign all rights to the letter of credit hereunder including the
right and power to draw on the letter of credit). In the case of
clause (B) above, any letter of credit held by the Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the
Trust, and if the Primary Servicer (or Master Servicer) sells its
rights to service the applicable Mortgage Loan, the Primary Servicer
(or Master Servicer) has agreed to assign the applicable letter of
credit to the Trust or at the direction of the Special Servicer to
such party as the Special Servicer may instruct, in each case, at
the expense of the Primary Servicer (or Master Servicer). The
Primary Servicer (or Master Servicer) has agreed to indemnify the
Trust for any loss caused by the ineffectiveness of such assignment;
2.2.13 The original environmental indemnity agreement, if any,
related to any Mortgage Loan;
2.2.14 Third-party management agreements for all hotels and
for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
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2.2.15 Any Environmental Insurance Policy; and
2.2.16 Any affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12 above shall
be delivered to the Primary Servicer, the Master Servicer or the Trustee (as the
case may be) within 45 days of the Closing Date. In addition, a copy of any
ground lease shall be delivered to the Primary Servicer within 30 days of the
Closing Date. Any failure to deliver any ground lease shall constitute a
document defect.
"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 or
any Assistant Treasurer.
2.3 The Assignments of Mortgage and assignment of Assignment of Leases referred
to in Sections 2.2.4 and 2.2.6 may be in the form of a single instrument
assigning the Mortgage and the Assignment of Leases to the extent permitted by
applicable law. 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, Seller shall execute, in
accordance with the third succeeding paragraph, the assignments of mortgages,
the assignments of leases (to the extent separate from the mortgages) and the
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 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 Seller to Purchaser and
from Purchaser to the Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any Mortgage Loan,
any of the documents and/or instruments referred to in Sections 2.2.2, 2.2.3,
2.2.5 or 2.2.6, 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 within such 45 day period, but Seller delivers a
photocopy thereof (certified by the appropriate county recorder's office to be a
true and complete copy of the original thereof submitted for recording), to the
Trustee within such 45 day period, Seller shall then deliver within 90 days
after the Closing Date the recorded document (or within such longer period after
the Closing Date as the Trustee may consent to, which consent shall not be
unreasonably withheld so long as Seller is, as certified in writing to the
Trustee no less often than monthly, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy).
2.5 The Trustee, as assignee or transferee of Purchaser, shall be entitled to
all scheduled payments of principal due thereon 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
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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 Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver and
Purchaser, the Trustee or the agents of either may submit or cause to be
submitted for recordation at the expense of Seller, in the appropriate public
office for real property records, each assignment referred to in clauses 2.2.4
and 2.2.6(ii) above. Within 90 days following the Closing Date, Seller shall
deliver and Purchaser, the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of Seller, in the appropriate public
office for Uniform Commercial Code financing statements, the assignment referred
to in clause 2.2.1. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, Seller
shall prepare a substitute therefor or cure such defect, and Seller shall, at
its own expense (except in the case of a document or instrument that is lost by
the Trustee), record or file, as the case may be, and deliver such document or
instrument in accordance with this Section 2.
2.7 Documents that are in the possession of Seller, its agents or its
subcontractors that relate to the Mortgage Loans and that are not required to be
delivered to the Trustee shall be shipped by Seller to or at the direction of
the Master Servicer, on behalf of Purchaser, on or prior to the 75th day after
the Closing Date, in accordance with Section 3.1 of the Primary Servicing
Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer (or in the
alternative, the Primary Servicer) shall include, to the extent required to be
(and actually) delivered to Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Borrower/sponsor and any guarantors, any letters of credit, any intercreditor
agreement and any Environmental Insurance Policies. Delivery of any of the
foregoing documents to the Primary Servicer shall be deemed a delivery to the
Master Servicer and satisfy Seller's obligations under this subparagraph.
2.9 Upon the sale of the Mortgage Loans by Seller to 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 Purchaser and its assigns, and
the ownership of all records and documents with respect to the related Mortgage
Loan prepared by or that come into the possession of Seller shall immediately
vest in Purchaser and its assigns, and shall be delivered promptly by Seller to
or on behalf of either the Trustee or the Master Servicer as set forth herein,
subject to the requirements of the Primary Servicing Agreement. Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from Seller
to Purchaser and its assigns as a sale.
2.10 It is the express intent of the parties hereto that the conveyance of the
Mortgage Loans and related property to Purchaser by 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
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by Seller to Purchaser to secure a debt or other obligation of Seller. However,
in the event that, notwithstanding the intent of the parties, the Mortgage Loans
or any related property are held to be the property of 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:
2.10.1 this Agreement shall be deemed to be a security
agreement; and
2.10.2 the conveyance provided for in this Section 2 shall be
deemed to be a grant by Seller to Purchaser of a security interest
in all of 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 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.
2.11 The possession by 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 pursuant to the Uniform Commercial
Code (including, without limitation, Sections 9-313 thereof) as in force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the perfection of any such security interest.
2.12 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,
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
2.13 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
10
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, 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, Purchaser shall have all of the rights and remedies of a secured party
and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
2.14 Notwithstanding anything to the contrary contained herein, and subject to
Section 2.1, Purchaser shall not be required to purchase any Mortgage Loan as to
which any Mortgage Note (endorsed as described in clause 2.2.1) required to be
delivered to or on behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or before the Closing Date is not so delivered, or is not properly
executed or is defective on its face, and 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 Purchaser's or its successors' and assigns' rights in
respect thereof pursuant to Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing Date a
diskette acceptable to Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii) deliver to
Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at Purchaser's headquarters in New York, and (iii) otherwise cooperate
fully with 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 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 Purchaser or the Trustee to cause 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 hereof.
3.2 On or prior to the Closing Date, Seller shall allow representatives of any
of Purchaser, each Underwriter, 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, Seller's underwriting procedures and
Seller's ability to perform or observe all of the terms, covenants and
conditions of this Agreement. Such examinations and audits shall take place at
one or more offices of Seller during normal business hours and shall not be
conducted in a manner that is disruptive to Seller's normal business operations
upon reasonable prior advance notice. In the course of such examinations and
audits, Seller will make available to such representatives of any of Purchaser,
each Underwriter, 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 Seller
shall cooperate fully with any such examination and audit in all material
respects. On or prior to the Closing Date, Seller shall provide Purchaser with
all material information regarding Seller's financial condition and access
11
to knowledgeable financial or accounting officers for the purpose of answering
questions with respect to Seller's financial condition, financial statements as
provided to Purchaser or other developments affecting Seller's ability to
consummate the transactions contemplated hereby or otherwise affecting Seller in
any material respect. Within 45 days after the Closing Date, Seller shall
provide the Master Servicer or Primary Servicer, if applicable, with any
additional information identified by the Master Servicer or Primary Servicer, if
applicable, as necessary to complete the CMSA Property File, to the extent that
such information is available.
3.3 Purchaser may exercise any of its rights hereunder through one or more
designees or agents, provided Purchaser has provided Seller with prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding Seller and the
Mortgage Loans that has been delivered into 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 or the Prospectus Supplement or
Purchaser is required by law or court order to disclose such information. If
Purchaser is required to disclose in the Memorandum or the Prospectus Supplement
confidential information regarding Seller as described in the preceding
sentence, Purchaser shall provide to Seller a copy of the proposed form of such
disclosure prior to making such disclosure and Seller shall promptly, and in any
event within two Business Days, notify Purchaser of any inaccuracies therein, in
which case Purchaser shall modify such form in a manner that corrects such
inaccuracies. If Purchaser is required by law or court order to disclose
confidential information regarding Seller as described in the second preceding
sentence, Purchaser shall notify Seller and cooperate in Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, Purchaser is compelled as a matter of law to
disclose such information, Purchaser shall, prior to making such disclosure,
advise and consult with Seller and its counsel as to such disclosure and the
nature and wording of such disclosure and Purchaser shall use reasonable efforts
to obtain confidential treatment therefor. Notwithstanding the foregoing, if
reasonably advised by counsel that Purchaser is required by a regulatory agency
or court order to make such disclosure immediately, then Purchaser shall be
permitted to make such disclosure without prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby makes for
the benefit of 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, except as otherwise set forth on
Schedule A attached hereto, and hereby further represents and warrants to
Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the
United States. Seller
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has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to
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.
4.1.2 This Agreement has been duly and validly authorized,
executed and delivered by Seller, and assuming the due
authorization, execution and delivery hereof by Purchaser, this
Agreement constitutes the valid, legal and binding agreement of
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 of the
provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
4.1.3 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 Seller with
this Agreement, or the consummation by 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 Seller's sale
of the Mortgage Loans to 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 Seller
under this Agreement.
4.1.4 Neither the transfer of the Mortgage Loans to Purchaser,
nor the execution, delivery or performance of this Agreement by
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 Seller's articles of organization or by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which Seller is a party or by which it or
any of its assets is bound or results 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 4.1.3, any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority
having jurisdiction over Seller or its assets, except where in any
of the instances contemplated by clauses (B) or (C) above, any
conflict, breach or default, or
13
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 Seller or its ability to perform
its obligations and duties hereunder or result in any material
adverse change in the business, operations, financial condition,
properties or assets of Seller, or in any material impairment of the
right or ability of Seller to carry on its business substantially as
now conducted.
4.1.5 There are no actions or proceedings against, or
investigations of, Seller pending or, to Seller's knowledge,
threatened in writing against 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 Purchaser or the execution or
delivery by, or enforceability against, Seller of this Agreement or
have an effect on the financial condition of Seller that would
materially and adversely affect the ability of Seller to perform its
obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans
pursuant to this Agreement will effect a transfer by Seller of all
of its right, title and interest in and to the Mortgage Loans to
Purchaser.
4.1.7 To Seller's knowledge, Seller's Information (as defined
in that certain indemnification agreement, dated April 6, 2006,
between Seller, Purchaser, the Underwriters 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.
Notwithstanding anything contained herein to the contrary, this
subparagraph 4.1.7 shall run exclusively to the benefit of Purchaser
and no other party.
4.1.8 The Seller has complied with the disclosure requirements
of Regulation AB that arise from its role as "seller" and "sponsor"
in connection with the issuance of the Public Certificates.
4.1.9 For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the
Purchaser (or with respect to any Serviced Companion Mortgage Loan
that is deposited into an Other Securitization, the depositor in
such Other Securitization) and the Paying Agent with any Additional
Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next to the Seller's name on Schedule XV and Schedule XVI of
the Pooling and Servicing Agreement within the time periods and in
accordance with the provisions set forth in the Pooling and
Servicing Agreement.
To induce Purchaser to enter into this Agreement, Seller hereby covenants that
the foregoing representations and warranties and those set forth on Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to Exhibit 2, 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.
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Each of the representations, warranties and covenants made by Seller pursuant to
this Section 4.1 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.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as of the date hereof:
4.2.1 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.
4.2.2 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.
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 Seller, constitutes the
valid and binding obligation of 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.
4.2.3 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 Purchaser
with this Agreement, or the consummation by Purchaser of any
transaction contemplated hereby that has not been obtained or made
by Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by Purchaser
will violate 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 Purchaser is a party or that may be applicable to Purchaser or
its assets.
4.2.5 Purchaser's 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, order
or decree of any court, or order or regulation of any federal, state
or municipal government agency having jurisdiction over Purchaser or
its assets, which violation could materially and adversely affect
the condition (financial or otherwise) or the operation of Purchaser
or its assets or could materially and adversely affect its ability
to perform its obligations and duties hereunder.
15
4.2.6 There are no actions or proceedings against, or
investigations of, Purchaser pending or, to Purchaser's knowledge,
threatened against 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
Purchaser that would materially and adversely affect the ability of
Purchaser to perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment
banker, agent or other person, other than Seller, the Underwriters,
the Initial Purchasers and their respective affiliates, that may be
entitled to any commission or compensation in connection with the
sale of the Mortgage Loans or consummation of any of the
transactions contemplated hereby.
To induce Seller to enter into this Agreement, 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 Purchaser pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the benefit of the
Trustee on behalf of the holders of the Certificates, whether directly or by way
of Purchaser's assignment of its rights hereunder to the Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each as of the
date hereof unless otherwise specified).
5.2 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
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 the
party discovering such breach or defect determines that either (i) the defect or
breach materially and adversely affects the interests of the holders of the
Certificates in the related Mortgage Loan or (ii) both (A) the defect or breach
materially and adversely affects the value of the Mortgage Loan and (B) the
Mortgage Loan is a Specially Serviced Mortgage Loan or Rehabilitated Mortgage
Loan (any such defect described in the preceding clause (i) or (ii), a "Material
Document Defect" and any such breach described in the preceding clause (i) or
(ii), a "Material Breach"), the party determining that such Material Document
Defect or Material Breach exists shall promptly notify, in writing, the other
parties; provided that any breach of the representation and warranty contained
in paragraph (41) of such Exhibit 2 shall constitute a Material Breach only if
such prepayment premium or yield maintenance charge is not deemed "customary"
for commercial mortgage loans as evidenced by (i) an opinion of tax counsel to
such effect or (ii) a
16
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon
determining (or becoming aware of another party's determination) that any such
Material Document Defect or Material Breach exists (which determination shall,
absent evidence to the contrary, be presumed to be no earlier than three
Business Days prior to delivery of the notice to Seller referred to below), the
Master Servicer shall, and the Special Servicer may, request that Seller, not
later than 90 days from Seller's receipt of the notice of such Material Document
Defect or Material Breach, cure such Material Document Defect or Material
Breach, as the case may be, in all material respects; provided, however, that if
such Material Document Defect or Material Breach, as the case may be, cannot be
corrected or cured in all material respects within such 90 day period, and such
Material Document Defect or Material Breach would not cause the Mortgage Loan to
be other than a "qualified mortgage"(as defined in the Code) but Seller is
diligently attempting to effect such correction or cure, as certified by Seller
in an Officer's Certificate delivered to the Trustee, then the cure period will
be extended for an additional 90 days unless, solely in the case of a Material
Document Defect, (x) the Mortgage Loan is then a Specially Serviced Mortgage
Loan and a Servicing Transfer Event has occurred as a result of a monetary
default or as described in clause (ii) or clause (v) of the definition of
"Servicing Transfer Event" in the Pooling and Servicing Agreement and (y) the
Material Document Defect was identified in a certification delivered to Seller
by the Trustee pursuant to Section 2.2 of the Pooling and Servicing Agreement
not less than 90 days prior to the delivery of the notice of such Material
Document Defect. The parties acknowledge that neither delivery of a
certification or schedule of exceptions to Seller pursuant to Section 2.2 of the
Pooling and Servicing Agreement or otherwise nor possession of such
certification or schedule by Seller shall, in and of itself, constitute delivery
of notice of any Material Document Defect or knowledge or awareness by Seller,
the Master Servicer or the Special Servicer of any Material Document Defect
listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material Document
Defect or Material Breach cannot be corrected or cured or Seller otherwise fails
to correct or cure within the above cure periods, Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan (or interest therein) from Purchaser or its assignee
at the Purchase Price as defined in the Pooling and Servicing Agreement, or (ii)
if within the three-month period 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)), at its option replace,
without recourse, any Mortgage Loan or REO Mortgage Loan to which such defect
relates with a Qualifying Substitute Mortgage Loan. If such Material Document
Defect or Material Breach would cause the Mortgage Loan to be other than a
"qualified mortgage" (as defined in the Code), then notwithstanding the previous
sentence or the previous paragraph, repurchase must occur within 85 days from
the date Seller was notified of the defect. Seller agrees that any substitution
shall be completed in accordance with the terms and conditions of the Pooling
and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect or breach does
not constitute a Material Document Defect or Material Breach, as the case may
be, as to such Crossed Mortgage Loans (without regard to this
17
paragraph), then the applicable document defect or breach (as the case may be)
shall be deemed to constitute a Material Document Defect or Material Breach, as
the case may be, as to each such Crossed Mortgage Loan for purposes of the above
provisions, and Seller shall be obligated to repurchase or replace each such
Crossed Mortgage Loan in accordance with the provisions above, unless, in the
case of such breach or document defect, (A) Seller provides a
Nondisqualification Opinion to the Trustee at the expense of Seller if, in the
reasonable business judgment of the Trustee, it would be usual and customary in
accordance with industry practice to obtain a Nondisqualification Opinion and
(B) both of the following conditions would be satisfied if Seller were to
repurchase or replace only those Mortgage Loans as to which a Material Breach or
Material Document Defect had occurred without regard to this paragraph (the
"Affected Loan(s)"): (i) the debt service coverage ratio for all such other
Mortgage Loans (excluding the Affected Loan(s)) for the four calendar quarters
immediately preceding the repurchase or replacement is not less than the lesser
of (A) 0.10x below the debt service coverage ratio for all such other Mortgage
Loans (including the Affected Loans(s)) set forth in Appendix II to the Final
Prospectus Supplement and (B) the debt service coverage ratio for all such
Crossed Mortgage Loans (including the Affected Loan(s)) for the four preceding
calendar quarters preceding the repurchase or replacement, and (ii) the
loan-to-value ratio for all such Crossed Mortgage Loans (excluding the Affected
Loan(s)) is not greater than the greater of (A) the loan-to-value ratio,
expressed as a whole number (taken to one decimal place), for all such Crossed
Mortgage Loans (including the Affected Loan(s)) set forth in Appendix II to the
Final Prospectus Supplement plus 10% and (B) the loan-to-value ratio for all
such Crossed Mortgage Loans (including the Affected Loans(s)), at the time of
repurchase or replacement. The determination of the Master Servicer as to
whether the conditions set forth above have been satisfied shall be conclusive
and binding in the absence of manifest error. The Master Servicer will be
entitled to cause to be delivered, or direct Seller to (in which case Seller
shall) cause to be delivered to the Master Servicer, an Appraisal of any or all
of the related Mortgaged Properties for purposes of determining whether the
condition set forth in clause (ii) above has been satisfied, in each case at the
expense of Seller if the scope and cost of the Appraisal is approved by Seller
(such approval not to be unreasonably withheld).
5.5 With respect to any Defective Mortgage Loan, to the extent that Seller is
required to repurchase or substitute for such Defective Mortgage Loan (each, a
"Repurchased Loan") in the manner prescribed above while the Trustee (as
assignee of Purchaser) continues to hold any Crossed Mortgage Loan, Seller and
Purchaser hereby agree to forebear from enforcing any remedies against the
other's Primary Collateral but may exercise remedies against the Primary
Collateral securing their respective Mortgage Loans, including with respect to
the Trustee, the Primary Collateral securing the Mortgage Loans still held by
the Trustee, so long as such exercise does not impair the ability of the other
party to exercise its remedies against its Primary Collateral. If the exercise
of remedies by one party would impair the ability of the other party to exercise
its remedies with respect to the Primary Collateral securing the Mortgage Loan
or Mortgage Loans held by such party, then both parties shall forbear from
exercising such remedies until the loan documents evidencing and securing the
relevant Mortgage Loans can be modified in a manner that complies with the
Pooling and Servicing Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Crossed Mortgage Loans shall be allocated between such
Mortgage Loans in accordance with the Mortgage Loan documents, or otherwise on a
pro rata
18
basis based upon their outstanding Principal Balances. All other terms of the
Mortgage Loans shall remain in full force and effect, without any modification
thereof. The Mortgagors set forth on Schedule B hereto are intended third-party
beneficiaries of the provisions set forth in this paragraph and the preceding
paragraph. The provisions of this paragraph and the preceding paragraph may not
be modified with respect to any Mortgage Loan without the related Mortgagor's
consent.
5.6 Any of the following document defects shall be conclusively presumed
materially and adversely to affect the interests of Certificateholders in a
Mortgage Loan and be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity 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 by the local authority with which
the Mortgage was recorded; or (c) the absence from the Mortgage File of the item
specified in paragraph 2.2.8. If any of the foregoing Material Document Defects
is discovered by the Custodian (or the Trustee if there is no Custodian), the
Trustee (or as set forth in Section 2.3(a) of the Pooling and Servicing
Agreement, the Master Servicer) will take the steps described elsewhere in this
Section, including the giving of notices to the Rating Agencies and the parties
hereto and making demand upon Seller for the cure of the Material Document
Defect or repurchase or replacement of the related Mortgage Loan.
5.7 If Seller disputes that a Material Document Defect or Material Breach exists
with respect to a Mortgage Loan or otherwise refuses (i) to effect a correction
or cure of such Material Document Defect or Material Breach, (ii) to repurchase
the affected Mortgage Loan from Purchaser or its assignee or (iii) to replace
such Mortgage Loan with a Qualifying Substitute Mortgage Loan, each in
accordance with this Agreement, then provided that (i) the period of time
provided for Seller to correct, repurchase or cure has expired and (ii) the
Mortgage Loan is then in default and is then a Specially Serviced Mortgage Loan,
the Special Servicer may, subject to the Servicing Standard, modify, work-out or
foreclose, sell or otherwise liquidate (or permit the liquidation of) the
Mortgage Loan pursuant to Sections 9.5, 9.12, 9.15 and 9.36, as applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to a
work-out shall not constitute a defense to any repurchase claim nor shall such
modification and work-out change the Purchase Price due from Seller for any
repurchase claim. In the event of any such modification and work-out, Seller
shall be obligated to repurchase the Mortgage Loan as modified and the Purchase
Price shall include any Work-Out Fee paid to the Special Servicer up to the date
of repurchase plus the present value (calculated at a discount rate equal to the
applicable Mortgage Rate) of the Work-Out Fee that would have been payable to
the Special Servicer in respect of such Mortgage Loan if the Mortgage Loan
performed in accordance with its terms to its Maturity Date, provided that no
amount shall be paid by Seller in respect of any Work-Out Fee if a Liquidation
Fee already comprises a portion of the Purchase Price.
5.8 Seller shall have the right to purchase certain of the Mortgage Loans or REO
Properties, as applicable, in accordance with Section 9.36 of the Pooling and
Servicing Agreement.
5.9 The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan)
19
shall not prejudice any claim against Seller for repurchase of the REO Mortgage
Loan or REO Property. In such an event, the Master Servicer shall notify Seller
of the discovery of the Material Document Defect or Material Breach and Seller
shall have 90 days to correct or cure such Material Document Defect or Material
Breach or purchase the REO Property (or interest therein) at the Purchase Price.
After a final liquidation of the Mortgage Loan or REO Mortgage Loan, if a court
of competent jurisdiction issues a final order after the expiration of any
applicable appeal period that Seller is or was obligated to repurchase the
related Mortgage Loan or REO Mortgage Loan (or interest therein) (a "Final
Judicial Determination") or Seller otherwise accepts liability, then, but in no
event later than the Termination of the Trust pursuant to Section 9.30 of the
Pooling and Servicing Agreement, Seller will be obligated to pay to the Trust
the difference between any Liquidation Proceeds received upon such liquidation
in accordance with the Pooling and Servicing Agreement (including those arising
from any sale to Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in connection
with any sale or other liquidation of a Mortgage Loan or REO Property as
described in this Section 5, the Special Servicer shall not receive a
Liquidation Fee from Seller (but may collect such Liquidation Fee from the
related Liquidation Proceeds as otherwise provided herein); provided, however,
that in the event Seller is obligated to repurchase the Mortgage Loan or REO
Mortgaged Property (or interest therein) after a final liquidation of such
Mortgage Loan or REO Property pursuant to the immediately preceding paragraph,
an amount equal to any Liquidation Fee (calculated on the basis of Liquidation
Proceeds) payable to the Special Servicer shall be included in the definition of
"Purchase Price" in respect of such Mortgage Loan or REO Mortgaged Property.
Except as expressly set forth above, no Liquidation Fee shall be payable in
connection with a repurchase of a Mortgage Loan by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure a Material
Document Defect or a Material Breach or repurchase or replace a defective
Mortgage Loan constitute the sole remedies of Purchaser or its assignees with
respect to a Material Document Defect or Material Breach in respect of an
outstanding Mortgage Loan; provided, that this limitation shall not in any way
limit Purchaser's rights or remedies upon breach of any other representation or
warranty or covenant by Seller set forth in this Agreement (other than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a breach of the
representations and warranties set forth in paragraph 39 in Exhibit 2 hereto,
and as a result the payments, by a Mortgagor, of reasonable costs and expenses
associated with the defeasance or assumption of a Mortgage Loan are insufficient
causing the Trust to incur an Additional Trust Expense in an amount equal to
such reasonable costs and expenses not paid by such Mortgagor, Seller hereby
covenants and agrees to reimburse the Trust within 90 days of the receipt of
notice of such breach in an amount sufficient to avoid such Additional Trust
Expense. The parties hereto acknowledge that such reimbursement shall be
Seller's sole obligation with respect to the breach discussed in the previous
sentence.
5.13 The Pooling and Servicing Agreement shall provide that the Trustee (or the
Master Servicer or the Special Servicer on its behalf) shall give written notice
promptly (but in any event within three Business Days) to Seller of its
determination that any Material Document Defect or Material Breach exists (which
determination shall, absent evidence to the contrary, be presumed
20
to be no earlier than three Business Days prior to delivery of the notice) and
prompt written notice to Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
5.14 If Seller repurchases any Mortgage Loan pursuant to this Section 5,
Purchaser or its assignee, following receipt by the Trustee of the Purchase
Price therefor, promptly shall deliver or cause to be delivered to 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 Seller in the same manner such
that Seller shall be vested with legal and beneficial title to such Mortgage
Loan, in each case without recourse, including any property acquired in respect
of such Mortgage Loan or proceeds of any insurance policies with respect
thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held at the offices
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to each of the
following conditions:
6.1.1 All of the representations and warranties of Seller and
Purchaser specified in Section 4 hereof (including, without
limitation, the representations and warranties set forth on Exhibit
2 hereto) shall be true and correct as of the Closing Date (to the
extent of the standard, if any, set forth in each representation and
warranty).
6.1.2 All Closing Documents specified in Section 7 hereof, in
such forms as are agreed upon and reasonably acceptable to Seller or
Purchaser, as applicable, shall be duly executed and delivered by
all signatories as required pursuant to the respective terms
thereof.
6.1.3 Seller shall have delivered and released to Purchaser or
its designee all documents required to be delivered to Purchaser as
of the Closing Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by
Purchaser and its affiliates pursuant to Section 3 hereof shall be
satisfactory to Purchaser and its affiliates in their sole
determination and the parties shall have agreed to the form and
contents of Seller's Information to be disclosed in the Memorandum
and the Prospectus Supplement.
6.1.5 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 Seller and 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.
21
6.1.6 Seller shall have paid all fees and expenses payable by
it to Purchaser pursuant to Section 8 hereof.
6.1.7 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.
6.1.8 No Underwriter shall have terminated the Underwriting
Agreement and none of the Initial Purchasers shall have terminated
the Certificate Purchase Agreement, and neither the Underwriters nor
the Initial Purchasers shall have suspended, delayed or otherwise
cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable Purchaser to purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized officer of Seller and
dated the Closing Date, and upon which Purchaser and its successors and assigns
may rely, to the effect that: (i) the representations and warranties of 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 (ii) 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.
7.3 True, complete and correct copies of Seller's articles of organization and
by-laws.
7.4 A certificate of existence for Seller from the Comptroller of the Currency
dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that each
individual who, as an officer or representative of 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.
7.6 An opinion of counsel (which, other than as to the opinion described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated the Closing
Date, substantially to the effect of
22
the following (with such changes and modifications as Purchaser may approve and
subject to such counsel's reasonable qualifications):
7.6.1 Seller is validly existing under United States law and
has full corporate power and authority to enter into and perform its
obligations under this Agreement.
7.6.2 This Agreement has been duly authorized, executed and
delivered by Seller.
7.6.3 No consent, approval, authorization or order of any
federal court or governmental agency or body is required for the
consummation by Seller of the transactions contemplated by the terms
of this Agreement except any approvals as have been obtained. 7.6.4
Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by Seller of any of the transactions
contemplated by the terms of this Agreement (A) conflicts with or
results in a breach or violation of, or constitutes a default under,
the organizational documents of Seller, (B) to the knowledge of such
counsel, constitutes a default under any term or provision of any
material agreement, contract, instrument or indenture, to which
Seller is a party or by which it or any of its assets is bound or
results 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) conflicts with or results in a
breach or violation of any law, rule, regulation, order, judgment,
writ, injunction or decree of any court or governmental authority
having jurisdiction over Seller or its assets, except where in any
of the instances contemplated by clauses (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 Seller
or materially and adversely affect its ability to perform its
obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties
or assets of Seller, or in any material impairment of the right or
ability of Seller to carry on its business substantially as now
conducted.
7.6.5 To his or her knowledge, there are no legal or
governmental actions, investigations or proceedings pending to which
Seller is a party, or threatened against Seller, (a) asserting the
invalidity of this Agreement or (b) which materially and adversely
affect the performance by Seller of its obligations under, or the
validity or enforceability of, this Agreement.
7.6.6 This Agreement is a valid, legal and binding agreement
of Seller, enforceable against Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership or moratorium,
(2) other laws relating to or
23
affecting the rights of creditors generally, (3) general equity
principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law) or (4) public policy
considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
from liabilities under applicable securities laws.
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 and the corporate
laws of the State of Delaware and the State of New York, as applicable.
7.7 Such other opinions of counsel as any Rating Agency may request in
connection with the sale of the Mortgage Loans by Seller to Purchaser or
Seller's execution and delivery of, or performance under, this Agreement.
7.8 A "10b-5" opinion of counsel addressed to the Purchaser and the
Underwriters, in form reasonably acceptable to Purchaser and the Underwriters,
as to the disclosure provided by Seller to Purchaser in connection with the
Certificates.
7.9 An opinion of counsel addressed to Purchaser and the Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such disclosure
complies as to form with the applicable requirements of Regulation AB with
respect to Seller's role as Sponsor (as defined in Regulation AB) in connection
with the Certificates.
7.10 A letter from Deloitte & Touche, 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 Seller.
7.11 Such further certificates, opinions and documents as Purchaser may
reasonably request.
7.12 An officer's certificate of Purchaser, dated as of the Closing Date, with
the resolutions of Purchaser authorizing the transactions described herein
attached thereto, together with certified copies of the charter, by-laws and
certificate of good standing of Purchaser dated not earlier than 30 days prior
to the Closing Date.
7.13 Such other certificates of Purchaser's officers or others and such other
documents to evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
7.14 An executed ▇▇▇▇ of Sale in the form attached hereto as Exhibit 4.
24
8. COSTS. Seller shall pay Purchaser the costs and expenses as agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered into in
connection with this Agreement and the issuance of the Certificates.
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
Purchaser, addressed to Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.,
addressed to Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior
Managing Director, Commercial Mortgage Department (with a copy to the attention
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., Managing Director, Legal Department) (or such other
address as may hereafter be furnished in writing by Purchaser), or if (ii) to
Seller, addressed to Seller at ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(with a copy to the attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇ Fargo Bank,
National Association, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇, San
Francisco, California 94107) (or such other address as may hereafter be
furnished in writing by such entity).
10. SEVERABILITY OF PROVISIONS. Any part, provision, representation, warranty or
covenant of this Agreement that is prohibited or that 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 that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and 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.
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
25
in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Mortgage Notes and notwithstanding subsequent termination of
this Agreement.
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.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement shall inure to
the benefit of and shall be binding upon Seller, 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 Purchaser pursuant to Sections 2, 4.1 (other
than clause 4.1.7), 5, 9, 10, 11, 12 and 13 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 Purchaser. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assigns because of such ownership.
15. 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 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
Seller under this Agreement shall not be assigned by Seller without the prior
written consent of Purchaser, except that any person into which Seller may be
merged or consolidated, or any corporation resulting from any merger, conversion
or consolidation to which Seller is a party, or any person succeeding to the
entire business of Seller shall be the successor to Seller hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof (other than the Letter of Understanding (solely with respect to those
portions of this Agreement that are not assigned to the Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement), and
supersedes all prior and contemporaneous agreements, understandings, inducements
and conditions, express or implied, oral or written, of any nature whatsoever
with
26
respect to the subject matter hereof. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof.
27
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
▇▇▇▇▇ FARGO LOAN SCHEDULE
BSCMSI 2006 TOP22 Mortgage Loan Schedule
WFB
Original
Mortgage Term to
Loan Cut-Off Maturity Remaining Orig.
Seller Loan Number Property Name Date Balance Note Date or ARD Term Amort. Rate
45 WFB 310903747 12601 Fair Lakes $35,000,000 01/11/2006 60 58 IO 5.440%
Circle
48 WFB 310903101 60 ▇▇▇▇▇▇▇▇ $29,000,000 10/11/2005 120 115 360 5.250%
Street
61 WFB 310903559 ▇▇▇▇'▇-▇▇▇▇▇▇▇ $16,120,000 03/03/2006 120 120 360 5.790%
Park
64 WFB 310903752 Courtyard $15,575,000 01/03/2006 120 118 312 5.750%
Marriott,
(Langhorne, PA)
74 WFB 610902795 Giant Food Store $13,468,604 01/23/2006 120 118 360 5.560%
76 WFB 310903059 Holiday Inn Fargo $12,782,633 09/21/2005 120 114 300 5.530%
81 WFB 310903704 Tamarack Garden $11,989,361 02/06/2006 120 119 360 5.740%
Apartments
82 WFB 530902207 Illumina at Lake $11,988,866 02/07/2006 120 119 360 5.560%
Union
85 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ $11,000,000 12/22/2005 120 117 IO 5.420%
90 WFB 310903764 Rudgate Silver $10,448,983 01/19/2006 72 70 240 5.300%
Springs MHC
92 WFB 310903098 Markwins $10,176,201 02/01/2006 120 118 360 5.540%
Industrial
95 WFB 310902226 Hamburg Hills $9,556,547 03/14/2006 108 107 348 5.170%
Estates &
Coventry ▇▇▇▇▇
97 WFB 310903814 A-American Sun $9,187,863 02/07/2006 60 59 300 5.830%
Valley
99 WFB 310903817 Comfort Inn $8,472,671 01/25/2006 120 118 300 5.640%
Pentagon
102 WFB 310903813 A-American La $8,039,380 02/07/2006 60 59 300 5.830%
Verne
103 WFB 310903490 Hilton Garden $7,664,235 12/02/2005 120 117 300 5.570%
Inn
Minneapolis/Eden
Prairie
104 WFB 310903716 Monterey Shore $7,600,000 01/11/2006 60 58 360 5.750%
Plaza
106 WFB 310903763 Meadow Brook $7,383,207 01/19/2006 120 118 360 5.710%
Place Apartments
107 WFB 310903877 Ventura Office $7,350,000 02/07/2006 120 119 360 5.560%
Building
110 WFB 310903546 Holiday Inn $7,179,735 01/10/2006 120 118 300 6.620%
Auburn
111 WFB 310903834 Las Palmas $7,100,000 02/24/2006 120 119 360 5.585%
Medical & Dental
Building
113 WFB 310903871 LA Fitness $6,994,029 02/07/2006 120 119 360 5.890%
Hillsboro
118 WFB 310903903 Courtyard $6,300,000 02/01/2006 120 118 312 5.830%
Scranton
▇▇▇▇▇▇-▇▇▇▇▇
121 WFB 310903719 Security Public $5,956,715 01/25/2006 120 118 360 5.830%
Storage -
Bermuda Dunes
126 WFB 310903540 Tucson Fiesta $5,581,904 12/27/2005 120 117 360 5.610%
Center
127 WFB 310903864 Boise Airport $5,400,000 02/16/2006 120 120 360 5.850%
Industrial
130 WFB 310903761 South Point $5,240,000 01/03/2006 120 118 360 5.610%
Village
Apartments
134 WFB 410903262 Planet Self $5,000,000 12/07/2005 120 117 360 5.590%
Storage -
Somerville
135 WFB 410903789 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ $4,995,384 02/10/2006 120 119 360 5.580%
Garage
136 WFB 310903838 Westlake Office $4,995,221 02/21/2006 60 59 360 5.440%
Court
137 WFB 410903675 ▇▇▇▇▇▇▇ Green $4,988,504 01/09/2006 120 118 360 5.630%
Apartments
138 WFB 410903847 Burbank Media $4,985,587 02/14/2006 120 119 360 5.750%
Center
140 WFB 310903594 Walgreens - $4,934,184 12/21/2005 120 117 360 5.670%
Chicago
143 WFB 410901717 Security Public $4,633,935 11/07/2005 120 116 360 6.510%
Storage - ▇▇▇▇
City
144 WFB 410903751 10838 Cara Mia $4,520,998 02/02/2006 120 119 360 5.750%
Industrial
145 WFB 310903091 Wildrose $4,518,936 01/09/2006 120 118 360 5.260%
Business Park
Bldgs 15 and 16
148 WFB 410901716 Security Public $4,485,038 11/08/2005 120 116 360 6.690%
Storage - ▇▇▇▇▇▇▇
149 WFB 310903339 Country Inn & $4,472,158 12/22/2005 240 237 240 6.450%
Suites By
▇▇▇▇▇▇▇
Scottsdale
150 WFB 410903263 Planet Self $4,470,000 12/07/2005 120 117 360 5.730%
Storage - Sasha
151 WFB 410901714 Security Public $4,255,248 11/07/2005 120 116 360 6.510%
Storage -
Modesto (▇▇▇▇▇▇▇)
152 WFB 410903781 The Park Club $4,250,000 01/25/2006 120 118 360 5.680%
Apartments
153 WFB 410903313 Woodbridge Square $4,186,326 12/29/2005 120 117 360 5.570%
155 WFB 410903744 San Mateo Retail $4,060,000 01/31/2006 60 59 360 5.890%
158 WFB 620903461 Garden Grove $4,000,000 11/23/2005 120 117 360 5.560%
Secured Storage
165 WFB 410903720 Security Public $3,911,418 01/25/2006 120 118 360 5.930%
Storage - Santa
▇▇▇▇
166 WFB 410903656 Boston Building $3,891,250 01/10/2006 120 118 360 5.780%
168 WFB 310903917 Teleflex $3,800,000 03/07/2006 120 120 360 5.700%
Warehouse
173 WFB 410903520 Mount Prospect $3,500,000 02/01/2006 120 118 360 5.630%
Commons
174 WFB 410903248 Grand Market $3,488,984 12/29/2005 120 117 360 5.750%
Plaza
178 WFB 410903669 Warm Springs $3,400,000 03/02/2006 180 180 180 6.000%
Business Center
179 WFB 410903743 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ $3,384,557 01/17/2006 120 118 240 5.930%
Street Industrial
181 WFB 410902592 Aspen Medical $3,340,000 03/02/2006 120 120 300 6.240%
Phase II
184 WFB 410903222 Tuscany Plaza $3,277,224 02/02/2006 120 119 360 5.920%
189 WFB 410902645A Dollar General $709,032 12/02/2005 120 117 300 5.910%
Portfolio - N.
Veterans Blvd.
(V)
190 WFB 410902645B Dollar General $645,218 12/02/2005 120 117 300 5.910%
Portfolio - ▇.
▇▇▇▇▇▇▇ Pkwy (V)
191 WFB 410902645C Dollar General $616,857 12/02/2005 120 117 300 5.910%
Portfolio - S.
▇▇▇▇ ▇▇▇▇▇▇▇▇ (V)
192 WFB 410902645D Dollar General $574,315 12/02/2005 120 117 300 5.910%
Portfolio - ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇)
▇▇▇ ▇▇▇ 410902645E Dollar General $570,771 12/02/2005 120 117 300 5.910%
Porfolio -
▇▇▇▇▇▇▇ ▇▇. (V)
194 WFB 410903560 Chardonnay East $3,093,068 01/04/2006 120 118 360 5.800%
195 WFB 410903502 Stor Stuff $3,092,696 12/19/2005 120 118 360 5.480%
Lancaster
196 WFB 620903724 Windgate Village $3,043,112 01/02/2006 120 118 360 5.740%
Apartments
200 WFB 410903915 Summit Furniture $3,000,000 03/10/2006 120 120 360 6.180%
Building
201 WFB 410903728 SEMAG Shopping $2,993,225 01/20/2006 120 118 360 5.740%
Center
204 WFB 410903341 Narrows Creek $2,942,888 12/29/2005 120 118 360 5.340%
Townhomes
205 WFB 410903717 Security Public $2,913,607 01/25/2006 120 118 360 5.930%
Storage - ▇▇▇▇
208 WFB 410903624 Sacramento ENT $2,822,628 02/02/2006 120 119 360 5.950%
211 WFB 620903537 Continental Self $2,791,070 12/02/2005 120 117 360 5.680%
Storage-AZ
213 WFB 410903557 Midway $2,700,000 11/22/2005 120 117 IO 5.670%
Industrial
Building
214 WFB 410903413 Glenbrook Plaza $2,691,818 12/01/2005 120 117 360 5.950%
- San Leandro
215 WFB 410903533 Security Public $2,643,847 01/04/2006 120 118 360 5.570%
Storage -
Glendora
218 WFB 410903187 ▇▇▇▇▇ Avenue $2,600,000 10/25/2005 120 115 300 5.580%
Self Storage
219 WFB 410903318 Security Public $2,593,691 01/06/2006 120 118 360 5.300%
Storage - Sparks
221 WFB 410903456 Hickory $2,552,079 12/01/2005 120 117 360 5.840%
Industrial
222 WFB 410903793 ▇▇▇▇▇▇▇▇ Retail $2,497,786 02/02/2006 120 119 360 5.745%
Center
223 WFB 410903625 Pacific Terrace $2,494,728 01/24/2006 120 118 360 6.160%
224 WFB 410903679 Roseridge Office $2,492,352 12/07/2005 120 117 360 5.900%
Building
226 WFB 620903108 ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ $2,475,000 09/29/2005 120 115 IO 5.470%
Commercial
229 WFB 620903723 Petco-Minneapolis $2,429,447 01/13/2006 120 118 360 5.680%
230 WFB 410902732 Sun Coast $2,397,850 02/02/2006 120 119 360 5.700%
Gateway MHP
233 WFB 410903353 PTK Building $2,350,000 12/05/2005 120 117 360 5.920%
234 WFB 310903824 ▇▇▇▇▇▇▇▇▇▇ Creek $2,345,000 01/30/2006 120 118 360 5.660%
Apartments
235 WFB 410903585 ▇▇▇ ▇▇▇▇▇▇ - $2,344,641 01/19/2006 120 118 360 5.680%
▇▇▇▇▇
238 WFB 410903373 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ $2,189,720 12/12/2005 120 117 300 5.530%
239 WFB 410903810 Rite Aid - Flint $2,148,142 02/02/2006 120 119 360 5.840%
240 WFB 410901715 Security Public $2,137,526 11/28/2005 120 116 360 6.470%
Storage - Manteca
241 WFB 410903534 Security Public $2,095,140 01/04/2006 120 118 360 5.590%
Storage - ▇▇▇▇▇▇
Valley
242 WFB 410903535 Security Public $2,095,140 01/03/2006 120 118 360 5.590%
Storage -
Blackstone
243 WFB 410903282 15751 Roxford $1,995,295 01/05/2006 120 118 360 5.490%
Street
Industrial
Building
244 WFB 410903738 Qwest Building $1,975,192 01/12/2006 120 118 120 6.000%
246 WFB 410903661 U Stow N Go $1,895,610 01/10/2006 120 118 360 5.600%
247 WFB 410903429 ▇▇▇▇ $1,841,534 01/06/2006 120 118 240 5.860%
International
Office/Warehouse
248 WFB 410903811 Cubby Hole Texas $1,794,111 02/24/2006 120 119 180 6.000%
251 WFB 410903430 The Ohio Building $1,700,000 11/21/2005 84 81 360 5.660%
253 WFB 410903591 University $1,678,514 01/04/2006 120 118 120 5.630%
Square Apartment
254 WFB 410903809 Sunrise Shopping $1,648,164 02/17/2006 60 59 300 6.680%
Center
255 WFB 410903343 Desert Depot $1,632,980 12/16/2005 180 177 180 6.060%
257 WFB 620903746 Castle Plaza $1,600,000 01/03/2006 120 118 360 5.770%
Shopping Center
258 WFB 620903296 New York Carpets $1,593,397 11/14/2005 120 116 360 5.650%
259 WFB 410903835 Wasatch Point $1,575,000 02/13/2006 120 120 360 6.010%
Industrial
Building
260 WFB 410903272 Palm Crossing $1,495,125 12/20/2005 120 117 360 5.580%
261 WFB 410901568 ▇▇▇▇ ▇▇▇▇▇▇▇▇ $1,493,968 05/05/2004 120 99 300 6.480%
Avenue
263 WFB 410903653 Tractor Supply - $1,448,839 02/02/2006 120 119 360 6.130%
Paris, Tennessee
264 WFB 410903827 Rock Springs $1,299,011 02/02/2006 120 119 360 6.320%
266 WFB 410903786 Walgreens - $1,250,000 01/19/2006 120 119 360 5.880%
Avondale, AZ
267 WFB 410903768 200 West ▇▇▇▇▇▇▇ $1,110,363 02/01/2006 120 119 360 6.140%
Office
269 WFB 620903655 Washington $1,061,749 12/20/2005 120 118 360 6.140%
Mutual Building,
Edgewater
271 WFB 620903795 1335 Dayton $999,214 02/01/2006 120 119 360 6.200%
Street
Monthly
Debt
Service Seasoning DEF DEF/YM1 YM3 YM2 YM1.75 YM1.5 YM1.25 YM1 YM
45 $160,870 2 30
48 $128,637 5 87
61 $78,859 0 92
64 $75,667 2 81
74 $77,160 2 83
76 $79,449 6 81
81 $69,953 1 81
82 $68,587 1 81
85 $50,373 3 81
90 $71,047 2 42
92 $58,171 2 81
95 $53,117 1 79
97 $58,323 1 21
99 $52,910 2 90
102 $51,033 1 21
103 $47,607 3 81
104 $36,922 2 31
106 $42,997 2 83
107 $34,528 1 81
110 $49,156 2 81
111 $33,504 1 81
113 $41,475 1 81
118 $31,033 2 81
121 $35,143 2 83
126 $32,184 3 82
127 $31,857 0 83
130 $24,837 2 81
134 $23,615 3 88
135 $28,641 1 81
136 $28,202 1 31 2
137 $28,799 2 81
138 $29,120 1 81
140 $28,636 3 81
143 $29,422 4 83
144 $26,407 1 81
145 $25,043 2 81
148 $29,008 4 83
149 $33,418 3 201
150 $21,641 3 88
151 $27,017 4 83
152 $20,396 2 83
153 $24,032 3 81
155 $20,205 1 21
158 $18,791 3 81
165 $23,326 2 83
166 $22,834 2 81
168 $22,055 0 83
173 $16,649 2 81
174 $20,425 3 81
178 $28,691 0 143
179 $24,222 2 81
181 $22,012 0 81
184 $19,497 1 82
189 $4,549 3 81
190 $4,140 3 81
191 $3,958 3 81
192 $3,685 3 81
193 $3,662 3 81
194 $18,189 2 81
195 $17,563 2 81
196 $17,780 2 83
200 $18,335 0 78
201 $17,488 2 78
204 $16,455 2 83
205 $17,376 2 83
208 $16,847 1 83
211 $16,216 3 81
213 $12,935 3 81
214 $16,101 3 81
215 $15,163 2 83
218 $12,258 5 78
219 $14,438 2 83
221 $15,086 3 81
222 $14,581 1 81
223 $15,247 2 81
224 $14,828 3 81
226 $11,439 5 81
229 $14,102 2 81
230 $13,930 1 81
233 $11,754 3 81
234 $11,214 2 81
235 $13,610 2 81
238 $13,549 3 81
239 $12,670 1 81
240 $13,516 4 83
241 $12,042 2 83
242 $12,042 2 83
243 $11,343 2 81
244 $22,204 2 81
246 $10,908 2 83
247 $13,105 2 81
248 $15,189 1 81
251 $8,130 3 45
253 $18,559 2 81
254 $11,327 1 21
255 $13,977 3 141
257 $7,800 2 81
258 $9,236 4 81
259 $9,453 0 81
260 $8,592 3 81
261 $10,359 21 71 10
263 $8,815 1 83
264 $8,064 1 81
266 $6,210 1 81
267 $6,763 1 81
269 $6,475 2 81
271 $6,125 1 81
Master
Excess
Serv.
Admin Master Primary Fee
Cost Service Service Rate
5% 4% 3% 2% 1% Open YM Formula Rate Fee Rate Fee Rate (bps)
45 4 C 3.150 2.000 1.000 0.000
48 4 3.150 2.000 1.000 0.000
61 4 C 3.150 2.000 1.000 0.000
64 4 C 3.150 2.000 1.000 0.000
74 2 8.150 2.000 6.000 0.000
76 4 3.150 2.000 1.000 0.000
81 4 3.150 2.000 1.000 0.000
82 4 C 3.150 2.000 1.000 0.000
85 4 3.150 2.000 1.000 0.000
90 4 3.150 2.000 1.000 0.000
92 4 3.150 2.000 1.000 0.000
95 4 3.150 2.000 1.000 0.000
97 4 3.150 2.000 1.000 0.000
99 4 3.150 2.000 1.000 0.000
102 4 3.150 2.000 1.000 0.000
103 4 3.150 2.000 1.000 0.000
104 3 C 3.150 2.000 1.000 0.000
106 2 3.150 2.000 1.000 0.000
107 4 C 3.150 2.000 1.000 0.000
110 4 C 3.150 2.000 1.000 0.000
111 4 3.150 2.000 1.000 0.000
113 4 3.150 2.000 1.000 0.000
118 4 C 3.150 2.000 1.000 0.000
121 2 3.150 2.000 1.000 0.000
126 2 3.150 2.000 1.000 0.000
127 2 3.150 2.000 1.000 0.000
130 4 3.150 2.000 1.000 0.000
134 5 C 3.150 2.000 1.000 0.000
135 4 3.150 2.000 1.000 0.000
136 4 C 3.150 2.000 1.000 0.000
137 4 3.150 2.000 1.000 0.000
138 4 3.150 2.000 1.000 0.000
140 4 3.150 2.000 1.000 0.000
143 2 C 3.150 2.000 1.000 0.000
144 4 C 3.150 2.000 1.000 0.000
145 4 3.150 2.000 1.000 0.000
148 2 C 3.150 2.000 1.000 0.000
149 4 3.150 2.000 1.000 0.000
150 5 C 3.150 2.000 1.000 0.000
151 2 C 3.150 2.000 1.000 0.000
152 2 C 3.150 2.000 1.000 0.000
153 4 3.150 2.000 1.000 0.000
155 4 3.150 2.000 1.000 0.000
158 4 8.150 2.000 6.000 0.000
165 2 3.150 2.000 1.000 0.000
166 4 C 3.150 2.000 1.000 0.000
168 2 3.150 2.000 1.000 0.000
173 4 3.150 2.000 1.000 0.000
174 4 3.150 2.000 1.000 0.000
178 2 5.150 2.000 1.000 2.000
179 4 C 5.150 2.000 1.000 2.000
181 4 3.150 2.000 1.000 0.000
184 3 3.150 2.000 1.000 0.000
189 4 15.150 2.000 1.000 12.000
190 4 15.150 2.000 1.000 12.000
191 4 15.150 2.000 1.000 12.000
192 4 15.150 2.000 1.000 12.000
193 4 15.150 2.000 1.000 12.000
194 4 C 3.150 2.000 1.000 0.000
195 4 3.150 2.000 1.000 0.000
196 2 8.150 2.000 6.000 0.000
200 7 C 3.150 2.000 1.000 0.000
201 7 3.150 2.000 1.000 0.000
204 2 C 5.150 2.000 1.000 2.000
205 2 5.150 2.000 1.000 2.000
208 2 3.150 2.000 1.000 0.000
211 4 C 8.150 2.000 6.000 0.000
213 4 3.150 2.000 1.000 0.000
214 4 C 5.150 2.000 1.000 2.000
215 2 5.150 2.000 1.000 2.000
218 7 C 5.150 2.000 1.000 2.000
219 2 3.150 2.000 1.000 0.000
221 4 C 3.150 2.000 1.000 0.000
222 4 C 3.150 2.000 1.000 0.000
223 4 3.150 2.000 1.000 0.000
224 4 C 3.150 2.000 1.000 0.000
226 4 C 10.150 2.000 6.000 2.000
229 4 10.150 2.000 6.000 2.000
230 4 5.150 2.000 1.000 2.000
233 4 C 3.150 2.000 1.000 0.000
234 4 3.150 2.000 1.000 0.000
235 4 C 7.150 2.000 1.000 4.000
238 4 C 7.150 2.000 1.000 4.000
239 4 5.150 2.000 1.000 2.000
240 2 C 7.150 2.000 1.000 4.000
241 2 7.150 2.000 1.000 4.000
242 2 7.150 2.000 1.000 4.000
243 4 7.150 2.000 1.000 4.000
244 4 C 10.150 2.000 1.000 7.000
246 2 3.150 2.000 1.000 0.000
247 4 3.150 2.000 1.000 0.000
248 4 10.150 2.000 1.000 7.000
251 4 C 10.150 2.000 1.000 7.000
253 4 12.150 2.000 1.000 9.000
254 4 C 5.150 2.000 1.000 2.000
255 4 C 12.150 2.000 1.000 9.000
257 4 C 15.150 2.000 6.000 7.000
258 4 C 15.150 2.000 6.000 7.000
259 4 3.150 2.000 1.000 0.000
260 4 C 10.150 2.000 1.000 7.000
261 4 C 10.150 2.000 1.000 7.000
263 2 10.150 2.000 1.000 7.000
264 4 C 5.150 2.000 1.000 2.000
266 4 C 12.150 2.000 1.000 9.000
267 4 10.150 2.000 1.000 7.000
269 4 C 17.150 2.000 6.000 9.000
271 4 C 12.150 2.000 6.000 4.000
Primary
Excess
Servicing Other
Fee Rate Deal Trustee Master
(bps) Fees Fee Rate Fee
45 0.000 3.000 0.150 0.000
48 0.000 3.000 0.150 0.000
61 0.000 3.000 0.150 0.000
64 0.000 3.000 0.150 0.000
74 0.000 8.000 0.150 0.000
76 0.000 3.000 0.150 0.000
81 0.000 3.000 0.150 0.000
82 0.000 3.000 0.150 0.000
85 0.000 3.000 0.150 0.000
90 0.000 3.000 0.150 0.000
92 0.000 3.000 0.150 0.000
95 0.000 3.000 0.150 0.000
97 0.000 3.000 0.150 0.000
99 0.000 3.000 0.150 0.000
102 0.000 3.000 0.150 0.000
103 0.000 3.000 0.150 0.000
104 0.000 3.000 0.150 0.000
106 0.000 3.000 0.150 0.000
107 0.000 3.000 0.150 0.000
110 0.000 3.000 0.150 0.000
111 0.000 3.000 0.150 0.000
113 0.000 3.000 0.150 0.000
118 0.000 3.000 0.150 0.000
121 0.000 3.000 0.150 0.000
126 0.000 3.000 0.150 0.000
127 0.000 3.000 0.150 0.000
130 0.000 3.000 0.150 0.000
134 0.000 3.000 0.150 0.000
135 0.000 3.000 0.150 0.000
136 0.000 3.000 0.150 0.000
137 0.000 3.000 0.150 0.000
138 0.000 3.000 0.150 0.000
140 0.000 3.000 0.150 0.000
143 0.000 3.000 0.150 0.000
144 0.000 3.000 0.150 0.000
145 0.000 3.000 0.150 0.000
148 0.000 3.000 0.150 0.000
149 0.000 3.000 0.150 0.000
150 0.000 3.000 0.150 0.000
151 0.000 3.000 0.150 0.000
152 0.000 3.000 0.150 0.000
153 0.000 3.000 0.150 0.000
155 0.000 3.000 0.150 0.000
158 0.000 8.000 0.150 0.000
165 0.000 3.000 0.150 0.000
166 0.000 3.000 0.150 0.000
168 0.000 3.000 0.150 0.000
173 0.000 3.000 0.150 0.000
174 0.000 3.000 0.150 0.000
178 0.000 3.000 0.150 0.000
179 0.000 3.000 0.150 0.000
181 0.000 3.000 0.150 0.000
184 0.000 3.000 0.150 0.000
189 0.000 3.000 0.150 0.000
190 0.000 3.000 0.150 0.000
191 0.000 3.000 0.150 0.000
192 0.000 3.000 0.150 0.000
193 0.000 3.000 0.150 0.000
194 0.000 3.000 0.150 0.000
195 0.000 3.000 0.150 0.000
196 0.000 8.000 0.150 0.000
200 0.000 3.000 0.150 0.000
201 0.000 3.000 0.150 0.000
204 0.000 3.000 0.150 0.000
205 0.000 3.000 0.150 0.000
208 0.000 3.000 0.150 0.000
211 0.000 8.000 0.150 0.000
213 0.000 3.000 0.150 0.000
214 0.000 3.000 0.150 0.000
215 0.000 3.000 0.150 0.000
218 0.000 3.000 0.150 0.000
219 0.000 3.000 0.150 0.000
221 0.000 3.000 0.150 0.000
222 0.000 3.000 0.150 0.000
223 0.000 3.000 0.150 0.000
224 0.000 3.000 0.150 0.000
226 0.000 8.000 0.150 0.000
229 0.000 8.000 0.150 0.000
230 0.000 3.000 0.150 0.000
233 0.000 3.000 0.150 0.000
234 0.000 3.000 0.150 0.000
235 0.000 3.000 0.150 0.000
238 0.000 3.000 0.150 0.000
239 0.000 3.000 0.150 0.000
240 0.000 3.000 0.150 0.000
241 0.000 3.000 0.150 0.000
242 0.000 3.000 0.150 0.000
243 0.000 3.000 0.150 0.000
244 0.000 3.000 0.150 0.000
246 0.000 3.000 0.150 0.000
247 0.000 3.000 0.150 0.000
248 0.000 3.000 0.150 0.000
251 0.000 3.000 0.150 0.000
253 0.000 3.000 0.150 0.000
254 0.000 3.000 0.150 0.000
255 0.000 3.000 0.150 0.000
257 0.000 8.000 0.150 0.000
258 0.000 8.000 0.150 0.000
259 0.000 3.000 0.150 0.000
260 0.000 3.000 0.150 0.000
261 0.000 3.000 0.150 0.000
263 0.000 3.000 0.150 0.000
264 0.000 3.000 0.150 0.000
266 0.000 3.000 0.150 0.000
267 0.000 3.000 0.150 0.000
269 0.000 8.000 0.150 0.000
271 0.000 8.000 0.150 0.000
1-1
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
1. Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is complete, 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 Purchaser of the Mortgage Loans, Seller had good title to, and was
the sole owner of, each Mortgage Loan. Seller has full right, power and
authority to transfer and assign each of the Mortgage Loans to or at the
direction of Purchaser and has validly and effectively conveyed (or caused to be
conveyed) to Purchaser or its designee all of 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 Purchaser or its designee does not require 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, 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, (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 and (e) if such Mortgage Loan is cross-collateralized with any other
Mortgage Loan, the lien of the Mortgage for such other Mortgage Loan (the
foregoing items (a) through (e), 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 of the holder thereof
in all of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the Mortgagor's
personal property includes all personal property that a prudent mortgage lender
making a similar Mortgage Loan would deem reasonably necessary to operate the
related Mortgaged Property as it is currently being operated. A Uniform
Commercial Code
2-1
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, to the extent a
security interest may be so created therein, 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 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 has been
executed and delivered in favor of the Trustee and 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 part, and the related
Mortgaged Property has not been released from the lien of such Mortgage, in
whole or in part (except for partial reconveyances of real property that are set
forth on Schedule A to Exhibit 2), nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission or
release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged 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. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-Off Date as set forth on Schedule A to
this Exhibit 2, each Mortgaged Property is, to Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established) that
would materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an engineering report within 18
months prior to the Cut-Off Date as set forth on Schedule A to this Exhibit 2,
each Mortgaged Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor have
been established) and each Mortgaged Property is free of structural defects, in
each case, that would materially and adversely affect its value as security for
the related Mortgage Loan as of the date hereof. 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 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 that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries
2-2
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 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
marked-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 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) 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.
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 Seller, 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.
12. Environmental Conditions.
(i) Except as set forth on Schedule A to this Exhibit 2, with
respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject
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of an environmental site assessment within 18 months prior to
the Cut-Off Date, an environmental site assessment prepared to
ASTM standards, or an update of a previous such report, was
performed with respect to each Mortgaged Property in
connection with the origination or the sale of the related
Mortgage Loan, a report of each such assessment (or the most
recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to, or on behalf
of, Purchaser or its designee, and 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) environmental insurance covering such
condition was obtained or must be maintained until the
condition is remediated or (iii) the related Mortgagor was
required either to provide additional security that was deemed
to be sufficient by the originator in light of the
circumstances and/or to establish an operations and
maintenance plan. Each Mortgage Loan set forth on Schedule C
to this Exhibit 2 (each, a "Schedule C Loan") is the subject
of a Secured Creditor Impaired Property Policy, issued by the
issuer set forth on Schedule C (the "Policy Issuer") and
effective as of the date thereof (the "Environmental Insurance
Policy"). Except as set forth on Schedule A to this Exhibit 2,
with respect to each Schedule C Loan, (i) the Environmental
Insurance Policy is in full force and effect, (ii)(a) a
property condition or engineering report was prepared with
respect to lead based paint ("LBP") and radon gas ("RG") at
each Mortgaged Property that is used as a multifamily
dwelling, and with respect to asbestos containing materials
("ACM") at each related Mortgaged Property and (b) if such
report disclosed the existence of a material and adverse LBP,
ACM or RG environmental condition or circumstance affecting
the related Mortgaged Property, the related Mortgagor (A) was
required to remediate the identified condition prior to
closing the Mortgage Loan or provide additional security, or
establish with the lender a reserve from loan proceeds, in an
amount deemed to be sufficient by Seller for the remediation
of the problem and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan
after the closing of the Mortgage Loan, (iii) on the effective
date of the Environmental Insurance Policy, Seller as
originator had no knowledge of any material and adverse
environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or
RG) that was not disclosed to the Policy Issuer in one or more
of the following: (a) the application for insurance, (b) a
borrower questionnaire that was provided to the Policy Issuer
or (c) an engineering or other report provided to the Policy
Issuer and (iv) the premium of any
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Environmental Insurance Policy has been paid through the
maturity of the policy's term and the term of such policy
extends at least five years beyond the maturity of the
Mortgage Loan.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site
assessment prepared to ASTM standards within 18 months prior
to the Cut-Off Date as set forth on Schedule A to this Exhibit
2, (i) no Hazardous Material is present on such Mortgaged
Property such that (1) the value of such Mortgaged Property is
materially and adversely affected or (2) under applicable
federal, state or local law, (a) such Hazardous Material could
be required to be eliminated at a cost materially and
adversely affecting the value of the Mortgaged Property before
such Mortgaged Property could be altered, renovated,
demolished or transferred or (b) the presence of such
Hazardous Material could (upon action by the appropriate
governmental authorities) subject the owner of such Mortgaged
Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material
or the hazard created thereby at a cost materially and
adversely affecting the value of the Mortgaged Property, and
(ii) such Mortgaged Property is in material compliance with
all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse
effect on the value of such Mortgaged Property and neither
Seller nor, to Seller's knowledge, the related Mortgagor or
any current tenant thereon, has received any notice of
violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials, and any other substance or material as
may be defined as a hazardous or toxic substance by any federal,
state or local environmental law, ordinance, rule, regulation or
order, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. ▇▇.▇▇. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. ▇▇.▇▇. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. ▇▇.▇▇. 1251 et seq.),
the Clean Air Act (42 U.S.C. ▇▇.▇▇. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other agreement 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)
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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 agreement.
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, and
not less than the amount necessary to avoid the operation of any co-insurance
provisions with respect to the Mortgaged Property, and the policy contains no
provisions for a deduction for depreciation; (b) a business interruption or
rental loss insurance policy, in an amount at least equal to six months of
operations of the Mortgaged Property estimated as of the date of origination by
the originator of such Mortgage Loan consistent with its normal commercial
lending practices; (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 the
Federal Emergency Management Agency requires flood insurance to be maintained);
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 as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies 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 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 (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) 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, assessments (including assessments payable in future installments)
or other outstanding charges affecting any Mortgaged Property that 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
or penalties would be first payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor is, to Seller's knowledge, a debtor in
any state or federal bankruptcy or insolvency proceeding. As of the date of
origination, (i) with respect to Mortgage Loans with a principal balance greater
than $3,500,000, no tenant physically occupying 25% or more (by square feet) of
the net rentable area of the related Mortgaged Property was, to Seller's
knowledge, a debtor in any state or federal bankruptcy or insolvency proceeding
and (ii) with respect to Mortgage Loans with a principal balance equal to or
less than
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$3,500,000 no tenant physically occupying 50% or more (by square feet) of the
net rentable area of the related Mortgaged Property was, to Seller's knowledge,
a debtor in any state or federal bankruptcy or insolvency proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a 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"), by the related Mortgagor's interest in the Ground
Lease but not by the related fee interest in such Mortgaged Property (the "Fee
Interest"), and as to such Ground Leases:
(i) 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 Seller and related lessor)
does not prohibit the current use of the Mortgaged Property and
does not prohibit 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;
(ii) 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;
(iii) The Mortgagor's interest in such Ground Lease is assignable to
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 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;
(iv) Such Ground Lease is in full force and effect, and the Ground Lease
provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and
Seller has received no notice that an event of default has occurred
thereunder, and, to 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;
(v) 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.
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(vi) 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;
(vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years
beyond the Stated Maturity Date of the related Mortgage Loan;
(viii) 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
(ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent
commercial mortgage lenders lending on a similar Mortgaged Property
in the lending area where the Mortgaged Property is located; and
such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely
affect the security provided by the related Mortgage.
(x) Such Ground Lease requires the Lessor to enter into a new lease upon
termination of such Ground Lease if the Ground Lease is rejected in
a bankruptcy proceeding.
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 in clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance
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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
that 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
under such Mortgage Loan or under circumstances that made a default reasonably
foreseeable or (b) satisfies the provisions of either clause (a)(i) of paragraph
19 (substituting the date of the last such modification for the date the
Mortgage Loan was originated) or clause (a)(ii) of paragraph 19, including the
proviso thereto.
21. Advancement of Funds by 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 that was included in the appraisal for
such Mortgaged Property, and/or generates income 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 hereto require the mortgagee to grant releases of portions of the
related Mortgaged Properties upon (a) the satisfaction of certain legal and
underwriting requirements and/or (b) the payment of a predetermined or
objectively determinable release price and prepayment consideration in
connection therewith. Except as described in the first sentence hereof and for
those Mortgage Loans identified on Schedule A, no Mortgage Loan permits the full
or partial release or substitution of collateral unless the mortgagee or
servicer can require the Borrower to provide an opinion of tax counsel to the
effect that such release or substitution of collateral (a) would not constitute
a "significant modification" of such Mortgage Loan within the meaning of Treas.
Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3)(A) of the Code.
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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.
27. No Material Default. To Seller's 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
Seller in any of paragraphs 3, 7, 8, 12, 14, 15, 16 and 17 of this Exhibit 2.
28. Inspections. Seller (or if 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 or in connection with the sale of the related
Mortgage Loan by Seller hereunder.
30. Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. Seller has no knowledge that any
of the Mortgaged Properties is encumbered by any lien junior to the lien of the
related Mortgage.
31. Actions Concerning Mortgage Loans. To the knowledge of 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 Mortgaged Property 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 Seller or any
prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
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33. Licenses and Permits. To 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 or as of the date of the sale of the
related Mortgage Loan by Seller hereunder, 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 Mortgaged Property
as it was then operated.
34. Assisted Living Facility Regulation. If the Mortgaged Property is operated
as an assisted living facility, to Seller's knowledge (a) the related Mortgagor
is in compliance in all material respects with all federal and state laws
applicable to the use and operation of the related Mortgaged Property and (b) if
the operator of the Mortgaged Property participates in Medicare or Medicaid
programs, the facility is in compliance in all material respects with the
requirements for participation in such programs.
35. Collateral in Trust. The Mortgage Note for each Mortgage Loan is not secured
by a pledge of any collateral that has not been assigned to Purchaser.
36. Due on Sale. 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,
or a controlling interest in the related Mortgagor, is transferred, sold or
encumbered by a junior mortgage or deed of trust; 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, or transfer of interests in the
Mortgagor or constituent entities of the Mortgagor to a third party or parties
related to the Mortgagor upon the Mortgagor's satisfaction of certain conditions
precedent.
37. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a Cut-Off
Date Principal Balance in excess of $10 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 (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
38. Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage Loan
provide that such Mortgage Loan constitutes either (a) the recourse obligations
of at least one natural person or (b) the non-recourse obligations of the
related Mortgagor, provided that at least
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one natural person (and the Mortgagor if the Mortgagor is not a natural person)
is liable to the holder of the Mortgage Loan for damages arising in the case of
fraud or willful misrepresentation by the Mortgagor, misappropriation of rents,
insurance proceeds or condemnation awards and breaches of the environmental
covenants in the Mortgage Loan documents.
39. Defeasance and Assumption Costs. The related Mortgage Loan documents provide
that the related borrower is responsible for the payment of all reasonable costs
and expenses of the lender incurred in connection with the defeasance of such
Mortgage Loan and the release of the related Mortgaged Property, and the
borrower is required to pay all reasonable costs and expenses of the lender
associated with the approval of an assumption of such Mortgage Loan.
40. Defeasance. No Mortgage Loan provides that (i) it can be defeased until the
date that is more than two years after the Closing Date, (ii) that it can be
defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States that will provide interest and principal payments sufficient
to satisfy scheduled payments of interest and principal as required under the
related Mortgage Loan, or (iii) defeasance requires the payment of any
consideration other than (a) reimbursement of incidental costs and expenses
and/or (b) a specified dollar amount or an amount that is based on a formula
that uses objective financial information (as defined in Treasury Regulation
Section 1.446-3(c)(4)(ii)).
41. Prepayment Premiums. As of the applicable date of origination of each such
Mortgage Loan, any prepayment premiums and yield maintenance charges payable
under the terms of the Mortgage Loans, in respect of voluntary prepayments,
constituted customary prepayment premiums and yield maintenance charges for
commercial mortgage loans.
42. Terrorism Insurance. With respect to each Mortgage Loan that has a principal
balance as of the Cut-off Date that is greater than or equal to $20,000,000, the
related all risk insurance policy and business interruption policy do not
specifically exclude Acts of Terrorism, as defined in the Terrorism Risk
Insurance Act of 2002, from coverage, or if such coverage is excluded, is
covered by a separate terrorism insurance policy. With respect to each other
Mortgage Loan, the related all risk insurance policy and business interruption
policy did not as of the date of origination of the Mortgage Loan, and, to
Seller's knowledge, do not, as of the date hereof, specifically exclude Acts of
Terrorism from coverage, or if such coverage is excluded, it is covered by a
separate terrorism insurance policy. With respect to each of the Mortgage Loans,
the related Mortgage Loan documents do not expressly waive or prohibit the
mortgagee from requiring coverage for acts of terrorism or damages related
thereto, except to the extent that any right to require such coverage may be
limited by commercially reasonable availability, or as otherwise indicated on
Schedule A.
43. Foreclosure Property. Seller is not selling any Mortgage Loan as part of a
plan to transfer the underlying Mortgaged Property to Purchaser, and Seller does
not know or, to Seller's knowledge, have reason to know that any Mortgage Loan
will default. The representations in this paragraph 43 are being made solely for
the purpose of determining whether the Mortgaged Property, if acquired by the
Trust, would qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code, and may not be relied upon or used for any other
purpose. Such
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representations shall not be construed as a guarantee to any degree that
defaults or losses will not occur.
2-13
Schedule A
Exceptions to Representations and Warranties
▇▇▇▇▇ Fargo Loans
Schedule B
List of Mortgagors that are Third-Party Beneficiaries Under Section 5.5
Schedule C
List of Mortgage Loans Subject to Secured Creditor Impaired Property Policies
EXHIBIT 3
PRICING FORMULATION
BSCMSI 2006-TOP22
Pricing Formulation
Mortgage Loan Sellers PRICING FORMULATION
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Bear ▇▇▇▇▇▇▇: 403,357,909
▇▇▇▇▇▇ ▇▇▇▇▇▇▇: 503,152,643
▇▇▇▇▇ Fargo: 509,881,880
PCF I: 87,263,009
PCF II: 178,858,344
--------------------------------------------------------------------------------
Deal 1,682,513,786
================================================================================
3-1
EXHIBIT 4
▇▇▇▇ OF SALE
1. Parties. The parties to this ▇▇▇▇ of Sale are the following:
Seller: ▇▇▇▇▇ Fargo Bank, National Association
Purchaser: Bear ▇▇▇▇▇▇▇ Commercial Mortgage Securities Inc.
2. Sale. For value received, Seller hereby conveys to 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 April 6, 2006 (the "Mortgage Loan Purchase Agreement"),
between Seller and 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 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.
3. Purchase Price. The amount and other consideration set forth on Exhibit 3 to
the Mortgage Loan Purchase Agreement.
4. Definitions. Terms used but not defined herein shall have the meanings
assigned to them in the Mortgage Loan Purchase Agreement.
4-1
IN WITNESS WHEREOF, each of the parties hereto has caused this ▇▇▇▇ of Sale to
be duly executed and delivered on this 20th day of April, 2006.
SELLER: ▇▇▇▇▇ FARGO BANK,
NATIONAL ASSOCIATION
By:
----------------------------------------
Name:
Title:
PURCHASER: BEAR ▇▇▇▇▇▇▇ COMMERCIAL
MORTGAGE SECURITIES INC.
By:
----------------------------------------
Name:
Title:
EXHIBIT 5
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT 5
THE MORTGAGE LOAN PURCHASE AGREEMENT
FORM OF LIMITED POWER OF ATTORNEY
TO LASALLE BANK NATIONAL ASSOCIATION
AND ARCAP SERVICING, INC.
WITH RESPECT TO
BEAR ▇▇▇▇▇▇▇ COMMERCIAL MORTGAGE SECURITIES INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2006-TOP22
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, pursuant to the terms of the Mortgage Loan Purchase Agreement
dated as of April 6, 2006 (the "Mortgage Loan Purchase Agreement"), between
▇▇▇▇▇ Fargo Bank, National Association ("▇▇▇▇▇") and Bear ▇▇▇▇▇▇▇ Commercial
Mortgage Securities Inc. ("Depositor"), ▇▇▇▇▇ is selling certain multifamily and
commercial mortgage loans (the "Mortgage Loans") to Depositor;
WHEREAS, pursuant to the terms of the Pooling and Servicing Agreement
dated as of April 1, 2006 (the "Pooling and Servicing Agreement"), between the
Depositor, ▇▇▇▇▇ Fargo Bank, National Association, as Master Servicer, ARCap
Servicing, Inc. ("ARCAP") as Special Servicer, LaSalle Bank National Association
("LaSalle") as Trustee and ▇▇▇▇▇ Fargo Bank, National Association, as Paying
Agent, the Trustee and the Special Servicer are granted certain powers,
responsibilities and authority in connection with the completion and the filing
and recording of assignments of mortgage, deeds of trust or similar documents,
Form UCC-2 and UCC-3 assignments of financing statements, reassignments of
assignments of leases, rents and profits and other Mortgage Loan documents
required to be filed or recorded in appropriate public filing and recording
offices;
WHEREAS, ▇▇▇▇▇ has agreed to provide this Limited Power of Attorney
pursuant to the Mortgage Loan Purchase Agreement;
NOW, THEREFORE, ▇▇▇▇▇ does hereby make, constitute and appoint LaSalle,
acting solely in its capacity as Trustee under, and in accordance with the terms
of, the Pooling and
5-1
Servicing Agreement, ▇▇▇▇▇'▇ true and lawful agent and attorney-in-fact with
respect to each Mortgage Loan in ▇▇▇▇▇'▇ name, place and stead: (i) to complete
(to the extent necessary) and to cause to be submitted for filing or recording
in the appropriate public filing or recording offices, all assignments of
mortgage, deeds of trust or similar documents, assignments or reassignments of
rents, leases and profits, in each case in favor of the Trustee, as set forth in
the definition of "Mortgage File" in Section 1.1 of the Pooling and Servicing
Agreement, that have been received by the Trustee or a Custodian on its behalf,
and all Form UCC-2 or UCC-3 assignments of financing statements and all other
comparable instruments or documents with respect to the Mortgage Loans which are
customarily and reasonably necessary or appropriate to assign agreements,
documents and instruments pertaining to the Mortgage Loans, in each case in
favor of the Trustee as set forth in the definition of "Mortgage File" in, and
in accordance with Section 1.1 of, the Pooling and Servicing Agreement, and to
evidence, provide notice of and perfect such assignments and conveyances in
favor of the Trustee in the public records of the appropriate filing and
recording offices; and (ii) to file or record in the appropriate public filing
or recording offices, all other Mortgage Loan documents to be recorded under the
terms of the Pooling and Servicing Agreement or any such Mortgage Loan documents
which have not been submitted for filing or recordation by ▇▇▇▇▇ on or before
the date hereof or which have been so submitted but are subsequently lost or
returned unrecorded or unfiled as a result of actual or purported defects
therein, in order to evidence, provide notice of and perfect such documents in
the public records of the appropriate filing and recording offices.
Notwithstanding the foregoing, this Limited Power of Attorney shall grant to
LaSalle and ARCAP only such powers, responsibilities and authority as are set
forth in Section 2.1 of the Mortgage Loan Purchase Agreement.
▇▇▇▇▇ does also hereby make, constitute and appoint ARCAP, acting solely
in its capacity as Special Servicer under the Pooling and Servicing Agreement,
▇▇▇▇▇'▇ true and lawful agent and attorney-in-fact with respect to the Mortgage
Loans in ▇▇▇▇▇'▇ name, place and stead solely to exercise and perform all of the
rights, authority and powers of LaSalle as set forth in the preceding paragraph
in the event of the failure or the incapacity of LaSalle to do so for any
reason. As between ARCAP and any third party, no evidence of the failure or
incapacity of LaSalle shall be required and such third party may rely upon
ARCAP's written statement that it is acting pursuant to the terms of this
Limited Power of Attorney.
The enumeration of particular powers herein is not intended in any way to
limit the grant to either the Trustee or the Special Servicer as ▇▇▇▇▇'▇
attorney-in-fact of full power and authority with respect to the Mortgage Loans
to complete (to the extent necessary), file and record any documents,
instruments or other writings referred to above as fully, to all intents and
purposes, as ▇▇▇▇▇ might or could do if personally present, hereby ratifying and
confirming whatsoever such attorney-in-fact shall and may do by virtue hereof;
and ▇▇▇▇▇ agrees and represents to those dealing with such attorney-in-fact that
they may rely upon this Limited Power of Attorney until termination thereof
under the provisions of Article III below. As between ▇▇▇▇▇, the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Trust Fund and the
Certificateholders, neither the Trustee nor the Special Servicer may exercise
any right, authority or power granted by this Limited Power of Attorney in a
manner which would violate the terms of the Pooling and Servicing Agreement, but
any and all third parties dealing with either the Trustee or the Special
Servicer as ▇▇▇▇▇'▇ attorney-in-fact may rely completely,
unconditionally and conclusively on the authority of the Trustee or the Special
Servicer, as applicable, and need not make any inquiry about whether the Trustee
or the Special Servicer is acting pursuant to the Pooling and Servicing
Agreement. Any purchaser, title insurance company or other third party may rely
upon a written statement by either the Trustee or the Special Servicer that any
particular Mortgage Loan or related mortgaged real property in question is
subject to and included under this Limited Power of Attorney and the Pooling and
Servicing Agreement.
Any act or thing lawfully done hereunder by either the Trustee or the
Special Servicer shall be binding on ▇▇▇▇▇ and ▇▇▇▇▇'▇ successors and assigns.
This Limited Power of Attorney shall continue in full force and effect
with respect to the Trustee and the Special Servicer, as applicable, until the
earliest occurrence of any of the following events:
16.1 with respect to the Trustee, the termination of the Trustee and its
replacement with a successor Trustee under the terms of the Pooling
and Servicing Agreement;
16.2 with respect to the Special Servicer, the termination of the Special
Servicer and its replacement with a successor Special Servicer under
the terms of the Pooling and Servicing Agreement;
16.3 with respect to the Trustee, the appointment of a receiver or
conservator with respect to the business of the Trustee, or the
filing of a voluntary or involuntary petition in bankruptcy by or
against the Trustee;
16.4 with respect to the Special Servicer, the appointment of a receiver
or conservator with respect to the business of the Special Servicer,
or the filing of a voluntary or involuntary petition in bankruptcy
by or against the Special Servicer;
16.5 with respect to each of the Trustee and the Special Servicer and any
Mortgage Loan, such Mortgage Loan is no longer a part of the Trust
Fund;
16.6 with respect to each of the Trustee and the Special Servicer, the
termination of the Pooling and Servicing Agreement in accordance
with its terms; and
16.7 with respect to the Special Servicer, the occurrence of an Event of
Default under the Pooling and Servicing Agreement with respect to
the Special Servicer.
Nothing herein shall be deemed to amend or modify the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement or the respective
rights, duties or obligations of ▇▇▇▇▇ under the Mortgage Loan Purchase
Agreement, and nothing herein shall constitute a waiver of any rights or
remedies under the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Mortgage Loan Purchase Agreement.
THIS LIMITED POWER OF ATTORNEY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES APPLIED IN NEW YORK.
[Signature on next page]
IN WITNESS WHEREOF, ▇▇▇▇▇ has caused this instrument to be executed and
its corporate seal to be affixed hereto by its officer duly authorized as of
April 20, 2006.
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------
Name:
Title:
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this ____th day of April , 2006, before me appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
to me personally known, who, being by me duly sworn did say that he/she is the
Managing Director of ▇▇▇▇▇ Fargo Bank, National Association, and that the seal
affixed to the foregoing instrument is the corporate seal of said corporation,
and that said instrument was signed and sealed in behalf of said corporation by
authority of its board of directors, and said Managing Director acknowledged
said instrument to be the free act and deed of said corporation.
Name:
-----------------------------------
Notary Public in and for said
County and State
My Commission Expires:
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