Exhibit 99.5
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MORTGAGE LOAN PURCHASE AGREEMENT
between
MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
as Seller
and
MORGAN STANLEY CAPITAL I INC.
as Purchaser
Dated July 19, 2007
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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...................10
4. REPRESENTATIONS, WARRANTIES AND COVENANTS 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....................................................................24
9.
NOTICES..................................................................24
10. SEVERABILITY OF
PROVISIONS...............................................25
11. FURTHER
ASSURANCES.......................................................25
12.
SURVIVAL.................................................................25
13. GOVERNING
LAW............................................................25
14. BENEFITS OF MORTGAGE LOAN PURCHASE
AGREEMENT.............................25
15.
MISCELLANEOUS............................................................26
16. ENTIRE
AGREEMENT.........................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Bill of Sale
Exhibit 4 Power of Attorney
Index of Defined Terms
Affected
Loan(s)..............................................................17
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..................................................19
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..........................................................7
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
(MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated July 19,
2007, between
Morgan Stanley Mortgage Capital Holdings LLC ("Seller") and Morgan
Stanley
Capital I 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 July 1, 2007 between Purchaser, as depositor, Wells
Fargo Bank,
National Association, as master servicer (the "Master Servicer"),
Centerline
Servicing Inc., as special servicer (the "Special Servicer"),
LaSalle Bank
National Association, as trustee and custodian (the "Trustee") and
Wells Fargo
Bank, National Association, as paying agent, certificate registrar
and
authenticating agent. 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 Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2007-TOP27 (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-1A, 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 Morgan Stanley & Co. Incorporated and Bear,
Stearns & Co. Inc. (the
"Underwriters"), pursuant to an Underwriting Agreement, between
Purchaser and
the Underwriters, dated July 19, 2007 (the "Underwriting
Agreement"), and the
Class X, Class A-MFL, 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
R-I, Class R-II, Class R-III and Class AW34 Certificates (the
"Private
Certificates") will be sold by Purchaser to Morgan Stanley &
Co. Incorporated
and Bear, Stearns & Co. Inc. (the "Initial Purchasers")
pursuant to a
Certificate Purchase Agreement, between Purchaser and the Initial
Purchasers,
dated July 19, 2007 (the "Certificate Purchase Agreement"). The
Underwriters
will offer the Public Certificates for sale publicly pursuant to a
Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement
dated July 19,
2007 (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 July 19, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller
and Purchaser
hereby agree as follows:
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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 July
1, 2007. 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 $733,526,095. The
sale of the
Mortgage Loans shall take place on July 30, 2007 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 in a letter dated as of the date
hereof, between
the parties to this Agreement and entered into in connection with
this Agreement
and the issuance of the Certificates, which purchase price excludes
accrued
interest and applicable deal expenses. 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 hereof), 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 hereof).
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
July 1, 2007, 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 4 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
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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
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
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates,
Series 2007-TOP27, 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, 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
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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 Morgan
Stanley Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-TOP27,"
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;
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
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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 Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-TOP27," 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;
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
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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 or a copy of the 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;
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 hereof 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 Section 2.6 hereof, the assignments of mortgages,
the
assignments of leases (to the extent separate from the mortgages)
and the
assignments of UCC financing statements
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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 hereof, 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 on the Mortgage Loans after
the Cut-Off
Date, all other payments of principal collected after the Cut-Off
Date (other
than scheduled payments of principal due on or before the Cut-Off
Date), and all
payments of interest on the Mortgage Loans allocable to the period
commencing on
the Cut-Off Date. All scheduled payments of principal and interest
due on or
before the Cut-Off Date and collected after the Cut-Off Date shall
belong to
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.
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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 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,
9
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, Section 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 The Seller hereby agrees to provide the Purchaser with prompt
notice of
any information it receives which indicates that the transfer of
each Mortgage
Loan from the Seller to the Purchaser may not be treated as a sale.
The Seller
shall, to the extent consistent with this Agreement, take such
reasonable
actions as may be necessary to ensure that, if this Agreement were
deemed to
create a security interest in the property described above, such
security
interest would be deemed to be a perfected security interest of
first priority
under applicable law and will be maintained as such throughout the
term of the
Agreement. In such case, the Seller hereby authorizes the Master
Servicer, the
Trustee and the Custodian to file all filings necessary to maintain
the
effectiveness of any original filings necessary under the Uniform
Commercial
Code as in effect in any jurisdiction to perfect such security
interest in such
property. In connection herewith, the Purchaser shall have all of
the rights and
remedies of a secured party 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 hereof, Purchaser shall not be required to purchase any
Mortgage
Loan as to which any Mortgage Note (endorsed as described in clause
2.2.1
hereof) 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 hereof.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
10
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 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 Free Writing Prospectus, 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 Free
Writing
Prospectus, the Memorandum or the Prospectus Supplement
confidential information
regarding Seller as
11
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, WARRANTIES AND COVENANTS 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, warrants
and
covenants to Purchaser as of the date hereof that:
4.1.1 Seller is duly organized and is validly existing as a
limited
liability company in good standing under the laws of the State of
New York.
Seller 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
12
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 Section 4.1.3 hereof, 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 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 July 19, 2007, 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.
13
4.1.8 The Seller has complied with the disclosure
requirements of
Regulation AB that arise from its role as "originator" and
"sponsor" in
connection with the issuance of the Public Certificates.
4.1.9 The Seller hereby agrees to deliver to 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
or the Trustee, as applicable, any Additional Form 10-D Disclosure,
any
Additional Form 10-K Disclosure and any Form 8-K Disclosure
Information set
forth next to the Seller's name on Schedule XV, Schedule XVI or
Schedule XVII of
the Pooling and Servicing Agreement (in formatting reasonably
appropriate for
inclusion in such form) (collectively, "Seller Reporting
Information"); provided
that, the Seller Reporting Information shall not be exclusive of
any additional
disclosure items specifically related to the Seller that may be
added to Form
10-K, Form 10-D or Form 8-K subsequent to the date hereof that are
required to
be included in the Exchange Act reports related to the Trust if the
Depositor or
the Paying Agent provides the Seller with notice of such additional
requirements. The Seller shall use its best efforts to deliver
proposed
disclosure language relating to any such event described under
Items 1117 and
1119 of Regulation AB and Item 1.03 to Form 8-K to the Paying Agent
or the
Trustee, as applicable, and the Purchaser within one Business Day
and in any
event no later than two Business Days of the Seller becoming aware
of such event
and shall provide disclosure relating to any other Seller Reporting
Information
required to be disclosed by Seller pursuant to this Section 4.1.9
on Form 8-K,
Form 10-D or Form 10-K within two Business Days following the
Purchaser's
request for such disclosure language. The obligation of the Seller
to provide
the above-referenced disclosure materials shall be suspended (for
so long as
neither the Trust nor, with respect to any Serviced Companion
Mortgage Loan
related to a Serviced Pari Passu Mortgage sold to the Trust by the
Seller, the
trust in the related Other Securitization, is subject to the
reporting
requirements of the Exchange Act) upon the Paying Agent or the
Trustee, as
applicable, filing a Form 15 with respect to the Trust as to that
fiscal year in
accordance with Section 13.8 of the Pooling and Servicing Agreement
or the
reporting requirements with respect to the Trust under the
Securities Exchange
Act of 1934, as amended, have otherwise been automatically
suspended; provided
that, for the avoidance of doubt, the suspension of such
information reporting
does not apply to Seller Reporting Information that is required to
be provided
for the fiscal year prior to suspension of the Trust's reporting
requirements
under the Securities Exchange Act of 1934 (including Additional
Form 10-K
Disclosure required to be disclosed on the Form 10-K related to the
fiscal year
preceding the year in which a Form 15 was filed). The Purchaser
shall provide
the Seller with notice (which notice may be sent via facsimile or
by email) if
the Paying Agent or the Trustee, as applicable, does not file such
Form 15
Suspension Notification pursuant to Section 13.8 of the Pooling and
Servicing
Agreement. The Seller hereby acknowledges that the information to
be provided by
it pursuant to this Section will be used in the preparation of
reports meeting
the reporting requirements of the Trust under Section 13(a) and/or
Section 15(d)
of the Securities Exchange Act of 1934, as amended.
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.
14
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.
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
15
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 hereof 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 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
16
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
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
17
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 those Crossed 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 Crossed 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 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.
18
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 (x) the period
of time
provided for Seller to correct, repurchase or cure has expired and
(y) 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) 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
19
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 Notwithstanding the foregoing, Seller has retained the right
to designate
and establish the successor borrower and to purchase or cause the
purchase on
behalf of the related borrower of the related defeasance collateral
("MSMCH
Defeasance Rights and Obligations"). In the event the Master
Servicer receives
notice of a defeasance request with respect to a Mortgage Loan
subject to
defeasance, the Pooling and Servicing Agreement provides that the
Master
Servicer shall provide upon receipt of such notice, written notice
of such
defeasance request to Seller or its assignee. Until such time as
Seller provides
written notice to the contrary, notice of a defeasance of a
Mortgage Loan with
MSMCH Defeasance Rights and Obligations shall be delivered to MSMCH
pursuant to
the notice provisions of the Pooling and Servicing Agreement.
20
5.14 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
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).
5.15 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 Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022
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 Free
Writing Prospectus, 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 Secretary of
State of New
York 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 the following (with such
changes and
modifications as Purchaser may approve and subject to such
counsel's reasonable
qualifications):
22
7.6.1 Seller is validly existing under New York law and has
full
corporate or organizational 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
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