Exhibit 10.2
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
PNC BANK, NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2007
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<PAGE>
TABLE OF CONTENTS
Page
----
Section 1. Transactions on
or Prior to the Closing Date....................
Section 2. Closing Date
Actions............................................
Section 3. Conveyance of
Mortgage Loans....................................
Section 4. Depositor's
Conditions to Closing...............................
Section 5. Seller's
Conditions to Closing..................................
Section 6. Representations
and Warranties of Seller........................
Section 7. Obligations of
Seller...........................................
Section 8. Crossed Mortgage
Loans..........................................
Section 9. Representations
and Warranties of Depositor.....................
Section 10. Survival of Certain
Representations, Warranties and Covenants...
Section 11. Transaction
Expenses............................................
Section 12. Recording Costs and
Expenses....................................
Section 13.
Notices.........................................................
Section 14. Examination of
Mortgage Files...................................
Section 15.
Successors......................................................
Section 16. Governing
Law...................................................
Section 17.
Severability....................................................
Section 18. Further
Assurances..............................................
Section 19.
Counterparts....................................................
Section 20. Treatment as Security
Agreement.................................
Section 21. Recordation of
Agreement........................................
Schedule I Schedule of
Transaction Terms
Schedule II Mortgage Loan
Schedule
Schedule III
Mortgage Loans Constituting Crossed Groups
Schedule IV Mortgage Loans with
Lost Notes
Schedule V Exceptions to
Seller's Representations and Warranties
Exhibit A
Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of
Lost Note Affidavit
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of September 1, 2007, is made by and between PNC BANK, NATIONAL
ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST
BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms
attached hereto
as Schedule I, which is incorporated herein by this reference, or,
if not
defined therein, in the Pooling and Servicing Agreement specified
on such
Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein,
Seller
has agreed to sell to Depositor and Depositor has agreed to
purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan
Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage
Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit
the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created
pursuant to
the Pooling and Servicing Agreement and to cause the issuance of
the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and
for
good and valuable consideration, the receipt and adequacy of which
is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1.
Transactions on or Prior to the Closing Date. On or
prior to the Closing Date, Seller shall have delivered the Mortgage
Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan
Schedule to
Wells Fargo Bank, N.A. as trustee (the "Trustee") or its designee,
against
receipt by Seller of a written receipt, pursuant to an arrangement
between
Seller and the Trustee; provided, however, that, item (xvi) in the
definition of
Mortgage File (below) shall be delivered to the applicable Master
Servicer for
inclusion in the Servicer File (defined below) with a copy
delivered to the
Trustee for inclusion in the Mortgage File; and provided, further,
that Seller
shall pay (or cause the related Borrower to pay) any costs of the
assignment or
amendment of each letter of credit described under such item (xvi)
required in
order for the Trustee to draw on such letter of credit pursuant to
the terms of
the Pooling and Servicing Agreement and shall deliver the related
assignment or
amendment documents within thirty (30) days after the Closing Date,
which period
may be extended by thirty (30) days as provided in the Pooling and
Servicing
Agreement. In addition, prior to such assignment or amendment of a
letter of
credit, Seller will take all necessary steps to enable the
applicable Master
Servicer to draw on the related letter of credit on behalf of the
Trustee
pursuant to the terms of the Pooling and Servicing Agreement,
including, if
necessary, drawing on the letter of credit in its own name pursuant
to written
instructions to draw from the applicable Master Servicer and upon
receipt,
immediately remitting the proceeds of such draw (or causing such
proceeds to be
remitted) to the applicable Master Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously
with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of
the
Certificates, the sale of the Publicly Offered Certificates by
Depositor to the
Underwriters pursuant to the Underwriting Agreement and the sale of
the Private
Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate
Purchase Agreement. The closing (the "Closing") shall take place at
the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial
Center, New York, New
York 10281, or such other location as agreed upon between the
parties hereto. On
the Closing Date, the following actions shall take place in
sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall
purchase
from
Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage
Loan Purchase Price payable in accordance with instructions
previously
provided to Depositor by Seller. The Mortgage Loan Purchase
Price
shall be paid by Depositor to Seller or at its direction by
wire
transfer
in immediately available funds to an account designated by
Seller
on or
prior to the Closing Date. The "Mortgage Loan Purchase Price"
paid
by
Depositor shall be equal to the amount that Depositor and Seller
have
mutually
agreed upon as the "Net Securitization Proceeds/Fees" under the
heading
"PNC Bank Share" in the Closing Statement (which amount
includes,
without
limitation, accrued interest and is less those costs and
expenses
to be paid
by Seller, including those expenses to be paid pursuant to
Section 11
hereof).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement,
Depositor
shall transfer all of its right, title and interest in, to and
under the
Mortgage Loans to the Trustee (for the benefit of the Holders
of
the
Certificates) in exchange for the issuance of the Certificates to
or
at the
direction of Depositor.
(iii)
Depositor shall sell to the Underwriters, and the Underwriters
shall
purchase from Depositor, the Publicly Offered Certificates
pursuant
to the
Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser,
and the Initial Purchaser shall purchase from Depositor, the
Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates
for sale
to the public pursuant to the Prospectus and the Prospectus
Supplement
and the Initial Purchaser will privately place certain classes
of the
Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to Seller's receipt of the Mortgage Loan
Purchase Price,
Seller does hereby assign, transfer, set over and otherwise convey,
without
recourse, to Depositor, free and clear of any liens, claims or
other
encumbrances, all of Seller's right, title and interest in, to and
under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule
and (ii) all
property of Seller described in Section 20(b) of this Agreement,
including,
without limitation, (A) all scheduled payments of interest and
principal due on
or with respect to the Mortgage Loans after the Cut-off Date and
(B) all other
payments of interest, principal or prepayment premiums received on
or with
respect to the Mortgage Loans after the Cut-off Date, other than
any such
payments of interest or principal or prepayment premiums that were
due on or
prior to the Cut-off Date. The parties acknowledge that such
assignment,
transfer, setting over and other conveyance shall not be construed
to limit any
obligation of Seller and any servicing rights of Midland Loan
Services, Inc.
under that certain servicing rights purchase agreement, dated as of
September 1,
2007, between Seller and Midland Loan Services, Inc. The Mortgage
File for each
Mortgage Loan shall contain the following documents on a collective
basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in
Schedule IV hereto, a "lost note affidavit" substantially in
the
form of
Exhibit B hereto and a true and complete copy of the Note),
bearing,
or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment
from the
applicable
Mortgage Loan Originator either in blank or to Seller, and
further
endorsed (at the direction of Depositor given pursuant to this
Agreement)
by Seller, on its face or by allonge attached thereto, without
recourse,
either in blank or to the order of the Trustee in the following
form: "Pay
to the order of Wells Fargo Bank, N.A., as trustee for the
registered
Holders of Credit Suisse First Boston Mortgage Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4,
without
recourse, representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or,
if
such
Mortgage has been returned by the related recording office, (A)
an
original,
(B) a certified copy or (C) a copy thereof from the applicable
recording
office, and originals or counterparts (or originals, certified
copies or
copies from the applicable recording office) of any intervening
assignments thereof from the applicable Mortgage Loan Originator
to
Seller, in
each case in the form submitted for recording or, if recorded,
with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form
(except
for any missing recording information and, if applicable,
completion
of the name of the assignee), from Seller (or the applicable
Mortgage
Loan Originator) either in blank or to "Wells Fargo Bank, N.A.,
as trustee
for the registered Holders of Credit Suisse First Boston
Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates,
Series
2007-C4";
(iv) an original, counterpart or copy of any related Assignment
of
Leases (if
such item is a document separate from the Mortgage), and the
originals,
counterparts or copies of any intervening assignments thereof
from the
applicable Mortgage Loan Originator of the Mortgage Loan to
Seller, in
each case in the form submitted for recording or, if recorded,
with
evidence of recording thereon;
(v) an original
assignment of any related Assignment of Leases (if
such item
is a document separate from the Mortgage), in recordable form
(except
for any missing recording information and, if applicable,
completion
of the name of the assignee), from Seller (or the applicable
Mortgage
Loan Originator), either in blank or to "Wells Fargo Bank,
N.A.,
as trustee
for the registered Holders of Credit Suisse First Boston
Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates,
Series
2007-C4", which assignment may be included as part of an
omnibus
assignment
covering other documents relating to the Mortgage Loan
(provided
that such omnibus assignment is effective and in recordable
form
under
applicable law);
(vi) an original or true and complete copy of any related
Security
Agreement
(if such item is a document separate from the Mortgage), and
the
originals
or copies of any intervening assignments thereof from the
applicable
Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement
(if
such item
is a document separate from the Mortgage), from Seller (or the
applicable
Mortgage Loan Originator) either in blank or to "Wells Fargo
Bank,
N.A., as trustee for the registered Holders of Credit Suisse
First
Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2007-C4," which assignment may be included as
part of
an omnibus
assignment covering other documents relating to the Mortgage
Loan
(provided that such omnibus assignment is effective under
applicable
law);
(viii) originals or copies of all (A) assumption agreements,
(B)
modifications, (C) written assurance agreements and (D)
substitution
agreements, together with any evidence of recording thereon or in
the form
submitted
for recording, in those instances where the terms or provisions
of the
Mortgage, Note or any related security document have been
modified
or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof
(together
with all endorsements or riders that were issued with or
subsequent
to the issuance of such policy), or if the policy has not yet
been
issued, the original or a copy of a binding written commitment
(which
may be a
pro forma or specimen title insurance policy which has been
accepted
or approved in writing by the related title insurance company,
or
an interim
binder that is "marked up" as binding and countersigned by the
title
company, which in any case is binding on the title insurance
company),
insuring the priority of the Mortgage as a first lien on the
related
Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a copy of any guaranty of the obligations of
the
Borrower
under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing
Statements and continuation statements which show the filing or
recording
thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or
recording
(including
the filing number or other similar filing information)
acceptable
to the Trustee (including, without limitation, evidence of such
filed or
recorded UCC Financing Statement as shown on a written UCC
search
report
from a reputable search firm, such as CSC/LexisNexis Document
Solutions,
Corporation Service Company, CT Corporation System and the like
or
printouts of on-line confirmations from such UCC filing or
recording
offices or
authorized agents thereof), sufficient to perfect (and maintain
the
perfection of) the security interest held by the applicable
Mortgage
Loan
Originator (and each assignee of record prior to the Trustee) in
and
to the
personalty of the Borrower at the Mortgaged Property, and
original
UCC
Financing Statement assignments, in a form suitable for filing
or
recording,
sufficient to assign each such UCC Financing Statement to the
Trustee;
(xii) the original or copy of the power of attorney (with
evidence
of
recording thereon) granted by the Borrower if the Mortgage, Note
or
other
document or instrument referred to above was not signed by the
Borrower;
(xiii) with respect to any debt of a Borrower permitted under
the
related
Mortgage Loan, an original or copy of a subordination
agreement,
standstill
agreement or other intercreditor, co-lender or similar
agreement
relating to such other debt, if any, including any mezzanine
loan
documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts,
an original or copy of any related account control agreement;
(xv) an original or copy of any related Loan Agreement (if
separate
from the
related Mortgage), and an original or copy of any related
Lock-Box
Agreement or Cash Collateral Account Agreement (if separate
from
the
related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating
to the Mortgage Loans and amendments thereto which entitles the
Trust to
draw thereon; provided that in connection with the delivery of
the
Mortgage File to the Trust, such originals shall be delivered to
the
applicable
Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies
thereof;
(xviii) the original or a copy of the ground lease and ground
lease
estoppels,
if any, and of any amendments, modifications or extensions
thereto,
if any;
(xix) the original or copy of any property management
agreement;
(xx) without duplication with clause (xiii) above, a copy of
the
mortgage
note evidencing the related Junior Loan, if any;
(xxi) copies of franchise agreements and franchisor comfort
letters,
if any,
for hospitality properties; and
(xxii) a checklist of the related Mortgage Loan Documents
included
in the
subject Mortgage File.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (ii)
(relating to
Mortgages), (iv) (relating to Assignments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents)(other than assignments of UCC Financing Statements to be
recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first
paragraph of
this Section 3, with evidence of recording or filing thereon on the
Closing
Date, solely because of a delay caused by the public recording or
filing office
where such document or instrument has been delivered for
recordation or filing,
the delivery requirements of such last sentence of such first
paragraph of this
Section 3 should be deemed to have been satisfied and such
non-delivered
document or instrument shall be deemed to have been included in the
Mortgage
File; provided that Seller: (i) shall deliver, or cause to be
delivered, to the
Trustee or its designee and the applicable Master Servicer a
duplicate original
or true copy of such document or instrument (certified by the
applicable public
recording or filing office, the applicable title insurance company
or Seller to
be a true and complete duplicate original or photocopy of the
original thereof
submitted for recording or filing) on the Closing Date, with
evidence of
recording or filing thereon within 120 days of the Closing Date,
which period
may be extended up to two times, in each case for an additional
period of 45
days provided that Seller, as certified in writing to the Trustee
prior to each
such 45-day extension, is in good faith attempting to obtain from
the
appropriate county recorder's office such original or
photocopy.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (ii)
(relating to
Mortgages), (iv) (relating to Assigments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents) (other than assignments of UCC Financing Statements to
be recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first
paragraph of
this Section 3, with evidence of recording or filing thereon for
any other
reason, including without limitation, that such non-delivered
document or
instrument has been lost, the delivery requirements of this
Agreement shall be
deemed to have been satisfied and such non-delivered document or
instrument
shall be deemed to have been included in the related Mortgage File
if a
photocopy or duplicate original of such non-delivered document or
instrument
(with evidence of recording or filing thereon and certified by the
appropriate
recording or filing office to be a true and complete copy of the
original
thereof as filed or recorded) is delivered to the Trustee or its
designee on or
before the Closing Date.
Notwithstanding the foregoing, in the event that Seller fails, as
to
any Mortgage Loan, to deliver any UCC Financing Statement
assignment with the
filing or recording information of the related UCC Financing
Statement, solely
because such UCC Financing Statement has not been returned to
Seller by the
applicable public filing or recording office where such UCC
Financing Statement
has been delivered for filing or recording, Seller shall not be in
breach of its
obligations with respect to such delivery, provided that Seller
promptly
forwards such UCC Financing Statement to the Trustee or its
designee (with a
copy to the applicable Master Servicer) upon its return from the
applicable
filing or recording office, together with the related original UCC
Financing
Statement assignment in a form appropriate for filing or
recording.
Notwithstanding the foregoing, Seller may elect, at its sole
cost
and expense, to engage a third-party contractor to prepare or
complete in proper
form for filing or recording any and all of the assignments of
Mortgage,
assignments of Assignments of Leases and assignments of UCC
Financing Statements
to the Trustee to be delivered pursuant to clauses (iii), (v), and
(xi) of the
last sentence of the first paragraph of this Section 3
(collectively, the
"Assignments"), to submit such Assignments for filing and
recording, as the case
may be, in the applicable public filing and recording offices and
to deliver
such Assignments to the Trustee or its designee (with a copy to the
applicable
Master Servicer) as such Assignments (or certified copies thereof)
are received
from the applicable filing and recording offices with evidence of
such filing or
recording indicated thereon. However, in the event Seller engages a
third-party
contractor as contemplated in the immediately preceding sentence,
the rights,
duties and obligations of Seller pursuant to this Agreement remain
binding on
Seller.
Within ten (10) Business Days after the Closing Date, Seller
shall
deliver the Servicer Files with respect to each of the Mortgage
Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer
(with a copy to
the applicable Master Servicer) at the direction of the applicable
Master
Servicer), under the Pooling and Servicing Agreement on behalf of
the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer
File shall
contain all documents and records in Seller's possession relating
to the
Mortgage Loans and constituting the related Servicing Files (as
defined in the
Pooling and Servicing Agreement).
For purposes of this Section 3, and notwithstanding any
contrary
provision hereof or of the definition of "Mortgage File", if there
exists with
respect to any group of Crossed Loans only one original or
certified copy of any
document or instrument described in the definition of "Mortgage
File" which
pertains to all of the Crossed Loans in such group of Crossed
Loans, the
inclusion of the original or certified copy of such document or
instrument in
the Mortgage File for any of such Crossed Loans and the inclusion
of a copy of
such original or certified copy in each of the Mortgage Files for
the other
Crossed Loans in such group of Crossed Loans, shall be deemed to
constitute the
inclusion of such original or certified copy, as the case may be,
in the
Mortgage File for each such Crossed Loan.
Seller
shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all
funds on
deposit in escrow accounts maintained with respect to the Mortgage
Loans in the
name of Seller or any other name, to be transferred to or at the
direction of
the applicable Master Servicer (or, if applicable, to a
Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off
Date, all
other payments of principal due and collected after the Cut-off
Date, and all
payments of interest on the Mortgage Loans, minus that portion of
any such
payment which is allocable to the period on or prior to the Cut-off
Date. All
scheduled payments of principal due on or before the Cut-off Date
and collected
after the Cut-off Date, together with the accompanying interest
payments, shall
belong to, and be promptly remitted to, Seller.
Upon
the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage
and the
contents of the related Mortgage File shall be vested in Depositor
and the
ownership of all records and documents that constitute the Servicer
File with
respect to the related Mortgage Loan shall immediately vest in
Depositor. All
Monthly Payments, Principal Prepayments and other amounts received
by Seller and
not otherwise belonging to Seller pursuant to this Agreement shall
be sent by
Seller within three (3) Business Days after Seller's receipt
thereof to the
applicable Master Servicer via wire transfer for deposit by the
applicable
Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor,
as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange
for the
consideration specified in Section 2 hereof. In connection with the
foregoing,
Seller shall cause all of its financial and accounting records to
reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at
all times
following the Closing Date cause all of its records and financial
statements and
any relevant consolidated financial statements of any direct or
indirect parent
to clearly reflect that the Mortgage Loans have been transferred to
Depositor
and are no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's
ownership (or the ownership by any of Depositor's assignees) of the
Mortgage
Loans. Except for actions that are the express responsibility of
another party
hereunder or under the Pooling and Servicing Agreement, and further
except for
actions that Seller is expressly permitted to complete subsequent
to the Closing
Date, Seller shall, on or before the Closing Date, take all actions
required
under applicable law to effectuate the transfer of the Mortgage
Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations
of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan
Purchase
Price at the Closing Date under the terms of this Agreement are
subject to the
satisfaction of each of the following conditions at or before the
Closing:
(a) Each of the obligations of Seller required to be performed by
it
on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; all of the
representations and warranties of Seller under this Agreement
(subject to the
exceptions set forth in the Exception Report) shall be true and
correct in all
material respects as of the Closing Date; no event shall have
occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage
Files which,
with notice or the passage of time, would constitute a material
default under
this Agreement; and Depositor shall have received certificates to
the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in
escrow, all of
the following closing documents, in such forms as are agreed upon
and reasonably
acceptable to Depositor and Seller, duly executed by all
signatories other than
Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of
this
Agreement,
which shall have been delivered to and held by the Trustee or
its
designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate
of Seller confirming its representations and
warranties
set forth in Section 6 (subject to the exceptions set forth in
the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing
Date,
covering various corporate matters and such other matters as
shall
be
reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and
such
other
documents to evidence fulfillment of the conditions set forth
in
this
Agreement as Depositor or its counsel may reasonably request;
and
(vi) all other information, documents, certificates, or letters
with
respect to
the Mortgage Loans or Seller and its Affiliates as are
reasonably
requested by Depositor in order for Depositor to perform any of
it
obligations or satisfy any of the conditions on its part to be
performed
or satisfied pursuant to any sale of Mortgage Loans by
Depositor
as
contemplated herein.
(c) Seller shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after the Closing.
(d) If Seller does not engage a third-party contractor for
recording
the applicable Mortgage Loan Documents, Seller shall have delivered
to the
Trustee, on or before the Closing Date, five limited powers of
attorney in favor
of the Trustee and applicable Special Servicer empowering the
Trustee and, in
the event of the failure or incapacity of the Trustee, the
applicable Special
Servicer, to record, at the expense of Seller, any Mortgage Loan
Documents
required to be recorded and any intervening assignments with
evidence of
recording thereon that are required to be included in the Mortgage
Files. Seller
shall reasonably cooperate with the Trustee and the applicable
Special Servicer
in connection with any additional powers or revisions thereto that
are requested
by such parties.
Section 5. Seller's Conditions to Closing. The obligations of
Seller
under this Agreement shall be subject to the satisfaction, on the
Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed
by
it on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; and all of
the representations and warranties of Depositor under this
Agreement shall be
true and correct in all material respects as of the Closing Date;
and no event
shall have occurred with respect to Depositor which, with notice or
the passage
of time, would constitute a material default under this Agreement,
and Seller
shall have received certificates to that effect signed by
authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably
acceptable to Seller
and Depositor, duly executed by all signatories other than Seller,
as required
pursuant to the respective terms thereof:
(i)
an officer's certificate of Depositor, dated as of the Closing
Date, with
the resolutions of Depositor authorizing the transactions set
forth
therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of
Depositor; and
(ii) such other certificates of its officers or others, such
opinions
of Depositor's counsel and such other documents required to
evidence
fulfillment of the conditions set forth in this Agreement as
Seller or
its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other
terms
and conditions of this Agreement which it is required to perform or
comply with
at or before the Closing and shall have the ability to perform or
comply with
all duties, obligations, provisions and terms which it is required
to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller. Seller
represents and warrants to Depositor as of the date hereof, as
follows:
(i) Seller is duly organized and is validly existing as a
national
banking
association in good standing under the laws of the United
States
of
America. Seller has conducted and is conducting its business so as
to
comply in
all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction
over it,
except
where the failure so to comply would not have a materially
adverse
effect on
the performance by Seller of this Agreement, and there is no
charge,
action, suit or proceeding before or by any court, regulatory
authority
or governmental agency or body pending or, to the knowledge of
Seller,
threatened, which is reasonably likely to materially and
adversely
affect the
performance by Seller of this Agreement or the consummation of
transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold,
transfer
and convey the Mortgage Loans and to execute and deliver this
Agreement
(and all agreements and documents executed and delivered by
Seller in
connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents
executed
and
delivered by Seller in connection herewith). Seller has duly
authorized
the execution, delivery and performance of this Agreement (and
all
agreements and documents executed and delivered by Seller in
connection
herewith), and has duly executed and delivered this Agreement
(and all
agreements and documents executed and delivered by Seller in
connection
herewith). This Agreement (and each agreement and document
executed
and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party
thereto,
constitutes the legal, valid and binding obligation of Seller
enforceable
in
accordance with its terms, except as such enforcement may be
limited by
bankruptcy, fraudulent transfer, insolvency, reorganization,
receivership,
moratorium
or other laws relating to or affecting the rights of creditors
generally,
by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and
by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement,
nor the fulfillment of or compliance with the terms and
conditions
of this Agreement by Seller, will (A) conflict with or result
in a
breach of any of the terms, conditions or provisions of
Seller's
articles
or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result
in a
breach of,
or constitute a default or result in an acceleration under, any
agreement
or instrument to which Seller is now a party or by which it (or
any of its
properties) is bound if compliance therewith is necessary (1)
to ensure
the enforceability of this Agreement or (2) for Seller to
perform
its duties and obligations under this Agreement (or any
agreement
or document executed
and delivered by Seller in connection herewith); (C)
conflict
with or result in a breach of any legal restriction if
compliance
therewith
is necessary (1) to ensure the enforceability of this Agreement
or (2) for
Seller to perform its duties and obligations under this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith); (D) result in the violation of any law,
rule,
regulation, order, judgment or decree to which Seller or its
property is
subject if
compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed and delivered
by Seller in connection herewith); or (E) result in
the
creation or imposition of any lien, charge or encumbrance that
would
have a
material adverse effect upon Seller's ability to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith), or materially
impair the
ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will
not cause
Seller to become insolvent and (2) is not intended by Seller to
hinder,
delay or defraud any of its present or future creditors. After
giving
effect to its transfer of the Mortgage Loans, as provided
herein,
the value
of Seller's assets, either taken at their present fair saleable
value or
at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and
obligations
of Seller,
and Seller will not be left with unreasonably small assets or
capital
with which to engage in and conduct its business. Seller does
not
intend to,
and does not believe that it will, incur debts or obligations
beyond its
ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy
of
Seller are
pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration
or filing
with, or notice to, any court or governmental agency or body
having
jurisdiction or regulatory authority over Seller is required
for
(A)
Seller's execution, delivery and performance of this Agreement (or
any
agreement
or document executed and delivered by Seller in connection
herewith),
(B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the
consummation by Seller of the transactions contemplated by this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith) or, to the extent so required, such
consent,
approval,
authorization, order, registration, filing or notice has been
obtained,
made or given (as applicable), except for the filing or
recording of
assignments and other Mortgage Loan Documents contemplated by
the terms
of this Agreement and except that Seller may not be duly
qualified
to transact business as a foreign corporation or licensed in
one
or more
states if such qualification or licensing is not necessary to
ensure the
enforceability of this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is
receiving
new value. The consideration received by Seller upon the sale
of
the
Mortgage Loans constitutes at least fair consideration and
reasonably
equivalent
value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause
to
believe, that it cannot perform each and every covenant of
Seller
contained
in this Agreement (or any agreement or document executed and
delivered
by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to
Seller's
knowledge, threatened in writing against Seller which are
reasonably
likely to draw into question the validity of this Agreement (or
any
agreement or document executed and delivered by Seller in
connection
herewith)
or which, either in any one instance or in the aggregate, are
reasonably
likely to materially impair the ability of Seller to perform
its duties
and obligations under this Agreement (or any agreement or
document
executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this
Agreement
(and each agreement or document executed and delivered by
Seller
in
connection herewith) is in the ordinary course of business of
Seller
and
Seller's transfer, assignment and conveyance of the Mortgage
Loans
pursuant
to this Agreement are not subject to the bulk transfer or
similar
statutory
provisions in effect in any applicable jurisdiction. The
Mortgage
Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled,
by
reason of
any act or omission of Seller, to any commission or
compensation
in
connection with the sale of the Mortgage Loans to Depositor
hereunder
except for
(A) the reimbursement of expenses as described herein or
otherwise
in connection with the transactions described in Section 2
hereof and
(B) the commissions or compensation owed to the Underwriters or
the
Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument
to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially
and
adversely
affect the ability of Seller to perform its obligations under
this
Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto,
subject to the exceptions to such representations and
warranties
set forth
on Schedule V hereto, are true and correct in all material
respects
as of the date hereof with respect to the Mortgage Loans
identified on
Schedule II.
Section 7. Obligations of Seller. Each of the representations
and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and
shall
continue in full force and effect, notwithstanding any restrictive
or qualified
endorsement on the Notes and notwithstanding subsequent termination
of this
Agreement or the Pooling and Servicing Agreement. The
representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall not be impaired by any review or
examination of the
Mortgage Files or other documents evidencing or relating to the
Mortgage Loans
or any failure on the part of Depositor to review or examine such
documents and
shall inure to the benefit of the initial transferee of the
Mortgage Loans from
Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, but shall
not inure to the benefit of any subsequent transferee
thereafter.
If any Certificateholder, the applicable Master Servicer, the
applicable Special Servicer or the Trustee discovers or receives
notice of a
breach of any of the representations or warranties made by Seller
with respect
to the Mortgage Loans (subject to the exceptions to such
representations and
warranties set forth in the Exception Report), as of the date
hereof in Section
6(xii) or as of the Closing Date pursuant to Section 4(b)(iii) (in
any such
case, a "Breach"), or discovers or receives notice that (a) any
document
required to be included in the Mortgage File related to any
Mortgage Loan is not
in the Trustee's (or its designee's) possession within the time
period required
herein or (b) such document has not been properly executed or is
otherwise
defective on its face (clause (a) and clause (b) each, a "Defect"
(which term
shall include the "Defects" described in the immediately following
paragraph) in
the related Mortgage File), such party shall give notice to the
applicable
Master Servicer, the applicable Special Servicer, the Trustee and
the Rating
Agencies. If the applicable Master Servicer or the applicable
Special Servicer
determines that such Breach or Defect materially and adversely
affects the value
of any Mortgage Loan or REO Loan or the interests of the Holders of
any Class of
Certificates (in which case such Breach or Defect shall be a
"Material Breach"
or a "Material Defect", as applicable), it shall give prompt
written notice of
such Breach or Defect to the Depositor, the Trustee, the applicable
Master
Servicer, the applicable Special Servicer and the Seller and shall
request that
the Seller not later than the earlier of 90 days from the receipt
by the Seller
of such notice or discovery by the Seller of such Breach or Defect
(subject to
the second succeeding paragraph, the "Initial Resolution Period"):
(i) cure such
Breach or Defect in all material respects; (ii) repurchase the
affected Mortgage
Loan at the applicable Purchase Price (as defined in the Pooling
and Servicing
Agreement); or (iii) substitute, in accordance with the Pooling and
Servicing
Agreement, one or more Qualified Substitute Mortgage Loans (as
defined in the
Pooling and Servicing Agreement) for such affected Mortgage Loan
(provided that
in no event shall any substitution occur later than the second
anniversary of
the Closing Date) and pay the applicable Master Servicer for
deposit into the
Collection Account any Substitution Shortfall Amount (as defined in
the Pooling
and Servicing Agreement) in connection therewith; provided,
however, that Seller
shall have an additional 90 days to cure such Material Breach or
Material Defect
if all of the following conditions are satisfied: (i) such Material
Breach or
Material Defect is capable of being cured but not within the
Initial Resolution
Period; (ii) such Material Breach or Material Defect does not cause
the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning
of Section
860G(a)(3) of the Code); (iii) Seller has commenced and is
diligently proceeding
with the cure of such Material Breach or Material Defect within the
Initial
Resolution Period; and (iv) Seller has delivered to the Rating
Agencies, the
applicable Master Servicer, the applicable Special Servicer and the
Trustee an
Officer's Certificate that describes the reasons that the cure was
not effected
within the Initial Resolution Period and the actions that it
proposes to take to
effect the cure and that states that it anticipates the cure will
be effected
within the additional 90-day period. If there exists a Breach of
any
representation or warranty that the related Mortgage Loan Documents
or any
particular Mortgage Loan Document requires the related Borrower to
bear the
costs and expenses associated with any particular action or matter
under such
Mortgage Loan Document(s), then Seller shall cure such Breach
within the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer
of immediately
available funds to the Collection Account) the reasonable amount of
any such
costs and expenses incurred by the applicable Master Servicer, the
applicable
Special Servicer, the Trustee or the Trust Fund that are the basis
of such
Breach and have not been reimbursed by the related Borrower;
provided, however,
that in the event any such costs and expenses exceed $10,000,
Seller shall have
the option to either repurchase the related Mortgage Loan at the
applicable
Purchase Price, replace such Mortgage Loan and pay any applicable
Substitution
Shortfall Amount or pay such costs and expenses. Except as provided
in the
proviso to the immediately preceding sentence, Seller shall remit
the amount of
such costs and expenses and upon its making such remittance, Seller
shall be
deemed to have cured such Breach in all respects. With respect to
any repurchase
of a Mortgage Loan hereunder or any substitution of one or more
Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no
such
substitution may be made in any calendar month after the
Determination Date for
such month; (B) scheduled payments of principal and interest due
with respect to
the Qualified Substitute Mortgage Loan(s) after the Due Date in the
month of
substitution, and scheduled payments of principal and interest due
with respect
to each Mortgage Loan being repurchased or replaced after the
related Cut-off
Date and received by the applicable Master Servicer or the
applicable Special
Servicer on behalf of the Trust on or prior to the related date of
repurchase or
substitution, shall be part of the Trust Fund; and (C) scheduled
payments of
principal and interest due with respect to each such Qualified
Substitute
Mortgage Loan on or prior to the Due Date in the month of
substitution, and
scheduled payments of principal and interest due with respect to
each Mortgage
Loan being repurchased or replaced and received by the applicable
Master
Servicer or the applicable Special Servicer on behalf of the Trust
after the
related date of repurchase or substitution, shall not be part of
the Trust Fund,
and Seller (or, if applicable, any person effecting the related
repurchase or
substitution in the place of Seller) shall be entitled to receive
such payments
promptly following receipt by the applicable Master Servicer or the
applicable
Special Servicer, as applicable, under the Pooling and Servicing
Agreement.
Any
of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the
Mortgage File of
the original signed Note, unless the Mortgage File contains a
signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of
the original
signed Mortgage, unless there is included in the Mortgage File a
certified copy
of the Mortgage as recorded or as sent for recordation, together
with a
certificate stating that the original signed Mortgage was sent for
recordation,
or a copy of the Mortgage and the related recording information;
(c) the absence
from the Mortgage File of the item called for by clause (ix)
(relating to
evidence of title insurance) of the last sentence of the first
paragraph of
Section 3 hereof; (d) the absence from the Mortgage File of any
intervening
assignments required to create an effective assignment to the
Trustee on behalf
of the Trust, unless there is included in the Mortgage File a
certified copy of
the intervening assignment as recorded or as sent for recordation,
together with
a certificate stating that the original intervening assignment was
sent for
recordation; (e) the absence from the Mortgage File (or the
Servicer File) of
any required original letter of credit (as required in the provisos
of Section 1
hereof), provided that such Defect may be cured by any substitute
letter of
credit or cash reserve on behalf of the related Borrower; (f) the
absence from
the Mortgage File of the original or a copy of any required ground
lease; or (g)
solely in the case of a Mortgage Loan secured by a Mortgaged
Property operated
as a hospitality property, the absence from the Mortgage File of
the related
franchise agreement and/or franchisor comfort letter. In addition,
Seller shall
cure any Defect described in clause (b), (c), (e) or (f) of the
immediately
preceding sentence as required in Section 2.02(b) of the Pooling
and Servicing
Agreement.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code)
shall be deemed a "Material Defect" or "Material Breach", as
applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be
90 days
following the earlier of Seller's receipt of notice (pursuant to
this Section 7)
with respect to, or its discovery of, such Defect or Breach (which
period shall
not be subject to extension).
If Seller does not, as required by this Section 7, correct or cure
a
Material Breach or a Material Defect in all material respects
within the
applicable Initial Resolution Period (as extended pursuant to this
Section 7),
or if such Material Breach or Material Defect is not capable of
being so
corrected or cured within such period, then Seller shall repurchase
or
substitute for the affected Mortgage Loan as provided in this
Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for
as provided
above, (ii) such Mortgage Loan is a Crossed Loan that is a part of
a Crossed
Group (as defined below) and (iii) the applicable Breach or Defect
does not
otherwise constitute a Breach or Defect, as the case may be, as to
any other
Crossed Loan in such Crossed Group (without regard to this
paragraph), then the
applicable Breach or Defect, as the case may be, will be deemed to
constitute a
Breach or Defect, as the case may be, as to any other Crossed Loan
in the
Crossed Group for purposes of the above provisions, and Seller will
be required
to repurchase or substitute for such other Crossed Loan(s) in the
related
Crossed Group in accordance with the provisions of this Section 7
unless such
other Crossed Loans satisfy the Crossed Loan Repurchase Criteria
(as defined in
the Pooling and Servicing Agreement) and Seller can satisfy all
other criteria
for substitution or repurchase of the affected Mortgage Loan(s) set
forth in the
Pooling and Servicing Agreement. In the event that one or more of
such other
Crossed Loans satisfy the Crossed Loan Repurchase Criteria, Seller
may elect
either to repurchase or substitute for only the affected Crossed
Loan as to
which the related Breach or Defect exists or to repurchase or
substitute for all
of the Crossed Loans in the related Crossed Group. Seller shall be
responsible
for the cost of any Appraisal required to be obtained by the
applicable Master
Servicer to determine if the Crossed Loan Repurchase Criteria have
been
satisfied, so long as the scope and cost of such Appraisal have
been approved by
Seller (such approval not to be unreasonably withheld). For
purposes of this
paragraph, a "Crossed Group" is any group of Mortgage Loans
identified as a
Crossed Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties
(but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller
will not be
obligated to repurchase or substitute for the Mortgage Loan if the
affected
Mortgaged Property may be released pursuant to the terms of any
partial release
provisions in the related Mortgage Loan Documents and the remaining
Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the
Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the
effect that such
partial release would not cause an Adverse REMIC Event (as defined
in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be
paid) the applicable release price required under the Mortgage Loan
Documents
and, to the extent not reimbursable out of the release price
pursuant to the
related Mortgage Loan Documents, any additional amounts necessary
to cover all
reasonable out-of-pocket expenses reasonably incurred by the
applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust
Fund in
connection therewith, including any unreimbursed advances and
interest thereon
made with respect to the Mortgaged Property that is being released,
and (iii)
such cure by release of such Mortgaged Property is effected within
the time
periods specified for a cure of a Material Breach or Material
Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to
Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee,
the Trustee
as its assignee, by wire transfer of immediately available funds to
the account
designated by Depositor or the Trustee, as the case may be, and
Depositor or the
Trustee, as the case may be, upon receipt of such funds, shall
promptly release
the related Mortgage File and Servicer File or cause them to be
released, to
Seller and shall execute and deliver such instruments of transfer
or assignment
as shall be necessary to vest in Seller the legal and beneficial
ownership of
such Mortgage Loan (including any property acquired in respect
thereof or
proceeds of any insurance policy with respect thereto) and the
related Mortgage
Loan Documents.
It is understood and agreed that the obligations of Seller set
forth
in this Section 7 to cure, substitute for or repurchase a Mortgage
Loan
constitute the sole remedies available to Depositor and its
successors and
assigns respecting any Breach or Defect affecting a Mortgage
Loan.
Section 8. Crossed Loans. With respect to any Crossed Loan
conveyed
hereunder, to the extent that Seller repurchases or substitutes for
an affected
Crossed Loan in the manner prescribed above while the Trustee
continues to hold
any related Crossed Loans, Seller and Depositor (on behalf of its
successors and
assigns) agree to modify, upon such repurchase or substitution, the
related
Mortgage Loan Documents in a manner such that such affected Crossed
Loan
repurchased or substituted by Seller, on the one hand, and any
related Crossed
Loans still held by the Trustee, on the other, would no longer
be
cross-defaulted or cross-collateralized with one another; provided
that Seller
shall have furnished the Trustee, at Seller's expense, with an
Opinion of
Counsel that such modification shall not cause an Adverse REMIC
Event; and
provided, further, that if such Opinion of Counsel cannot be
furnished, Seller
and Depositor hereby agree that such repurchase or substitution of
only the
affected Crossed Loans, notwithstanding anything to the contrary
herein, shall
not be permitted. Any reserve or other cash collateral or letters
of credit
securing the subject Crossed Loans shall be allocated between such
Mortgage
Loans in accordance with the Mortgage Loan Documents. All other
terms of such
Mortgage Loans shall remain in full force and effect, without any
modification
thereof.
Section 9. Representations and Warranties of Depositor.
Depositor
hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full
corporate power and authority to own its assets and conduct its
business as it
is conducted, and is duly qualified as a foreign corporation in
good standing in
all jurisdictions in which the ownership or lease of its property
or the conduct
of its business requires such qualification (except where the
failure to qualify
would not have a materially adverse effect on the consummation of
any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement
and
the performance of Depositor's obligations hereunder are within the
corporate
power of Depositor and have been duly authorized by Depositor and
neither the
execution and delivery by Depositor of this Agreement nor the
compliance by
Depositor with the provisions hereof, nor the consummation by
Depositor of the
transactions contemplated by this Agreement, will (i) conflict with
or result in
a breach of, or constitute a default under, the certificate of
incorporation or
by-laws of Depositor or, after giving effect to the consents or
taking of the
actions contemplated by clause (ii) of this paragraph (b), any of
the provisions
of any law, governmental rule, regulation, judgment, decree or
order binding on
Depositor or its properties, or any of the provisions of any
material indenture
or mortgage or any other material contract or other instrument to
which
Depositor is a party or by which it is bound or result in the
creation or
imposition of any lien, charge or encumbrance upon any of its
properties
pursuant to the terms of any such indenture, mortgage, contract or
other
instrument or (ii) require any consent of, notice to, or filing
with any person,
entity or governmental body, which has not been obtained or made by
Depositor,
except where, in any of the instances contemplated by clause (i)
above or this
clause (ii), the failure to do so will not have a material and
adverse effect on
the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor
and this Agreement constitutes a legal, valid and binding
instrument,
enforceable against Depositor in accordance with its terms,
subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency,
moratorium and other laws affecting the rights of creditors
generally and to
general principles of equity and the discretion of the court
(regardless of
whether enforcement of such remedies is considered in a proceeding
in equity or
at law) and, as to rights of indemnification hereunder, subject to
limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or
proceeding by or before any court, regulatory authority or
governmental agency
or body pending or, to the knowledge of Depositor, threatened
against Depositor
the outcome of which could be reasonably expected to materially and
adversely
affect the consummation of any transactions contemplated by this
Agreement.
Section 10. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth
in or made
pursuant to this Agreement, and the respective obligations of the
parties hereto
under Sections 7 and 12 of this Agreement, will remain in full
force and effect,
regardless of any investigation or statement as to the result
thereof made by or
on behalf of any party and will survive payment for the various
transfers
referred to herein and delivery of the Certificates or termination
of this
Agreement.
Section 11. Transaction Expenses. In connection with the
Closing
(and unless otherwise expressly provided herein, including, without
limitation,
in Section 12 of this Agreement), Seller shall be responsible for
the fees and
expenses of its own counsel, and Depositor and Seller agree to pay
the other
transaction expenses incurred in connection with the transactions
herein
contemplated as set forth in the Closing Statement (or, if not
covered thereby,
an expense shall be paid by the party incurring such expense).
Section 12. Recording Costs and Expenses. Seller agrees to
reimburse
the Trustee or its designee all recording and filing fees and
expenses incurred
by the Trustee or its designee in connection with the recording or
filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement,
including
Assignments. In the event Seller elects to engage a third-party
contractor to
prepare, complete, file and record Assignments with respect to
Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract
directly with
such contractor and shall be responsible for such contractor's
compensation and
reimbursement of recording and filing fees and other reimbursable
expenses
pursuant to their agreement.
Section 13. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and,
(a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed
to it at
Credit Suisse First Boston Mortgage Securities Corp., 11 Madison
Avenue, 5th
Floor, New York, New York 10010, Attention: Edmund Taylor, Telecopy
No.: (212)
743-4756 (with a copy to Tessa Peters, Telecopy No.: (212)
325-8282), or such
other address or telecopy number as may be designated by Depositor
to Seller in
writing, or (b) if sent to Seller, will be mailed, delivered or
telecopied and
confirmed to it at PNC Bank, National Association, 10851 Mastin,
Suite 300,
Overland Park, Kansas 66210 (for deliveries or courier), and P.O.
Box 25965,
Shawnee Mission, Kansas 66225-5965 (for United States mail),
Attention: Harry
Funk, Telecopy No.: (913) 253-9001, with a copy to it at One PNC
Plaza, 249
Fifth Avenue, 21st Floor, Pittsburgh, Pennsylvania 15222,
Attention: Gretchen
Lengel Kelly, Telecopy No.: (412) 762-4334, or such other address
or telecopy
number as may be designated by Seller to Depositor in writing.
Section 14. Examination of Mortgage Files. Upon reasonable
notice,
Seller, prior to the Closing Date, will make the Mortgage Files
available to
Depositor or its agent for examination during normal business hours
at Seller's
offices or such other location as shall otherwise be agreed upon by
Depositor
and Seller. The fact that Depositor or its agent has conducted or
has failed to
conduct any partial or complete examination of the Mortgage Files
shall not
affect the rights of Depositor or the Trustee (for the benefit of
the
Certificateholders) to demand cure, repurchase, or other relief as
provided
herein.
Section 15. Successors. This Agreement shall inure to the benefit
of
and shall be binding upon Seller and Depositor and their respective
successors
and permitted assigns, and nothing expressed 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
Seller and
Depositor and their respective successors and permitted assigns and
for the
benefit of no other Person; it being understood that (a) the
indemnities of
Seller contained in that certain Indemnification Agreement dated
August 24,
2007, among Seller, Depositor, the Initial Purchaser and the
Underwriters,
relating to, among other things, information regarding the Mortgage
Loans in the
Prospectus Supplement and the Offering Circular, subject to all
limitations
therein contained, shall also be for the benefit of the officers
and directors
of Depositor, the Underwriters and the Initial Purchaser and any
person or
persons who control Depositor, the Underwriters and the Initial
Purchaser within
the meaning of Section 15 of the Securities Act or Section 20 of
the Securities
Exchange Act of 1934, as amended, and (b) the rights of Depositor
pursuant to
this Agreement, subject to all limitations herein contained,
including those set
forth in Section 7 of this Agreement, may be assigned to the
Trustee, for
benefit of the Certificateholders, as may be required to effect the
purposes of
the Pooling and Servicing Agreement and, upon such assignment, the
Trustee shall
succeed to such rights of Depositor hereunder; provided that the
Trustee shall
have no right to further assign such rights to any other Person. No
owner of a
Certificate issued pursuant to the Pooling and Servicing Agreement
shall be
deemed a successor or permitted assign because of such
ownership.
Section 16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE
WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 17. Severability. If any provision of this Agreement
shall
be prohibited or invalid under applicable law, this Agreement shall
be
ineffective only to such extent, without invalidating the remainder
of this
Agreement.
Section 18. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the
other party
may, from time to time, reasonably request in order to effectuate
the purpose
and to carry out the terms of this Agreement.
Section 19. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different
counterparts), each
of which when so executed and delivered will be an original, and
all of which
together will be deemed to constitute but one and the same
instrument.
Section 20. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage
Loans by Seller
to Depositor as provided in this Agreement be, and be construed as,
a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the
intention of
the parties that such conveyance be deemed a pledge of the Mortgage
Loans by
Seller to Depositor to secure a debt or other obligation of Seller.
However, in
the event that, notwithstanding the intent of the parties, the
Mortgage Loans
are held to be property of Seller or if for any reason this
Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement
within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in
effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby
grant
from Seller to Depositor a security interest in and to all of
Seller's right,
title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights (including any guarantees),
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
property described in the Mortgage Loans, including the related
Notes,
Mortgages and title, hazard and other insurance policies,
identified
on the Mortgage Loan Schedule, and all distributions with
respect
thereto payable after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel
paper,
instruments, documents, money, deposit accounts, certificates
of
deposit,
goods, letters of credit, advices of credit and investment
property
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 (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each
case,
payable
after the Cut-off Date; and
(iii) all cash and
non-cash proceeds of the collateral described in
clauses
(i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes
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 or a
person
designated by him or her, for purposes of perfecting the security
interest
pursuant to the Uniform Commercial Code (including, without
limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant
jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such
property,
shall be deemed to be notifications to, or acknowledgments,
receipts or
confirmations from, financial intermediaries, bailees or agents of,
or persons
holding for (as applicable), Depositor or its assignee for the
purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Depositor or its assignee, shall,
to
the extent consistent with this Agreement, take such actions as may
be necessary
to ensure that, if this Agreement were deemed to create a security
interest in
the Mortgage Loans and the proceeds thereof, such security interest
would be a
perfected security interest of first priority under applicable law
and will be
maintained as such throughout the term of this Agreement. In
connection
herewith, Depositor and its assignee 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 and may prepare and file such UCC
Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 21. Recordation of Agreement. To the extent permitted
by
applicable law, this Agreement is subject to recordation following
the Closing
Date in all appropriate public offices for real property records in
all the
counties or other comparable jurisdictions in which any or all of
the properties
subject to the Mortgages are situated, and in any other appropriate
public
recording office or elsewhere, such re
