EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of July
31, 2007
(this "Agreement"), is entered into between General Electric
Capital Corporation
(the "Seller") and Merrill Lynch Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase
certain multifamily, commercial and manufactured housing community
mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to
deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other
Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial
ownership of which
will be evidenced by multiple classes of mortgage pass-through
certificates (the
"Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The
Trust Fund
will be created and the Certificates will be issued pursuant to a
Pooling and
Servicing Agreement, dated as of August 1, 2007 (the "Pooling and
Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate
Capital
Markets, Inc. and Wells Fargo Bank, National Association ("Wells
Fargo") as
master servicers (each, in such capacity, a "Master Servicer"),
Centerline
Servicing Inc. as special servicer (the "Special Servicer"), U.S.
Bank National
Association as trustee (the "Trustee"), Wells Fargo as certificate
administrator
and LaSalle Bank National Association as custodian (in such
capacities, the
"Certificate Administrator" and "Custodian", respectively).
Capitalized terms
used but not defined herein (including the schedules attached
hereto) have the
respective meanings set forth in the Pooling and Servicing
Agreement.
The Purchaser has entered into an Underwriting
Agreement, dated as
of July 31, 2007 (the "Underwriting Agreement"), with Merrill
Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") for itself and as
representative
of Goldman, Sachs & Co. ("Goldman Sachs") and Morgan Stanley
& Co. Incorporated
("Morgan Stanley"; Merrill Lynch, Goldman Sachs and Morgan Stanley,
collectively, in such capacity, the "Underwriters"), whereby the
Purchaser will
sell to the Underwriters all of the Certificates that are to be
registered under
the Securities Act of 1933, as amended (such Certificates, the
"Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate
Purchase
Agreement, dated as of July 31, 2007 (the "Certificate Purchase
Agreement"),
with Merrill Lynch (in such capacity, the "Initial Purchaser"),
whereby the
Purchaser will sell to the Initial Purchaser all of the remaining
Certificates
(such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and
the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to
purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have
an aggregate principal balance of $886,893,130 (the "GECC Mortgage
Loan
Balance") (subject to a variance of plus or minus
5.0%) 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 such
payments are
received. The GECC Mortgage Loan Balance, together with the
aggregate principal
balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect
to any payments due on or before such date, whether or not such
payments are
received), is expected to equal an aggregate principal balance of
$4,050,224,261
(subject to a variance of plus or minus 5%). The purchase and sale
of the
Mortgage Loans shall take place on August 16, 2007 or such other
date as shall
be mutually acceptable to the parties to this Agreement (the
"Closing Date").
The consideration (the "Purchase Consideration") for the Mortgage
Loans shall be
equal to (i) approximately 96.8677% of the GECC Mortgage Loan
Balance as of the
Cut-off Date, plus (ii) $ 2,182,198.50, which amount represents the
amount of
interest accrued on the GECC Mortgage Loan Balance, as agreed to by
the Seller
and the Purchaser. The Purchase Consideration may be subsequently
adjusted
pursuant to the Letter Agreement referred to below.
The Purchase Consideration shall be paid to the Seller
or its
designee by wire transfer in immediately available funds on the
Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
the Seller's
receipt of the Purchase Consideration (without regard to any
adjustment thereto
pursuant to the Letter Agreement) and the satisfaction or waiver of
the
conditions to closing set forth in Section 5 of this Agreement
(which conditions
shall be deemed to have been satisfied or waived upon the Seller's
receipt of
the Purchase Consideration), the Seller does hereby sell, transfer,
assign, set
over and otherwise convey to the Purchaser, without recourse
(except as set
forth in this Agreement), all the right, title and interest of the
Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as
of such date,
on a servicing released basis (subject to certain agreements
regarding servicing
as provided in the Pooling and Servicing Agreement, the
sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement
(as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's
right, title and
interest in and to the proceeds of any related title, hazard,
primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may
be amended,
shall conform to the requirements set forth in this Agreement and
the Pooling
and Servicing Agreement.
The Seller hereby covenants and agrees that the sale of
the Mortgage
Loans by the Seller is not subject to, and shall not be limited by,
the letter
agreement (the "Letter Agreement") entered into by the Seller and
Merrill Lynch
with respect to certain classes of the Certificates, and that the
Seller shall
have no claim against the Mortgage Loans as a result of its
entering into the
Letter Agreement.
(b) The Purchaser or its assignee shall be entitled
to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date but collected after the Cut-off Date,
and
recoveries of principal and interest collected on or before the
Cut-off Date
(only in respect of principal and
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interest on the Mortgage Loans due on or before the Cut-off Date
and principal
prepayments thereon), shall belong to, and be promptly remitted to,
the Seller.
(c) The Seller hereby represents and warrants that it
has or
will have, on behalf of the Purchaser, delivered to the Custodian
(i) on or
before the Closing Date, the documents and instruments specified
below with
respect to each Mortgage Loan that are Specially Designated
Mortgage Loan
Documents and (ii) on or before the date that is 30 days after the
Closing Date,
the remaining documents and instruments specified below that are
not Specially
Designated Mortgage Loan Documents with respect to each Mortgage
Loan (the
documents and instruments specified below and referred to in
clauses (i) and
(ii) preceding, collectively, a "Mortgage File"). All Mortgage
Files so
delivered will be held by the Custodian in escrow for the benefit
of the Seller
at all times prior to the Closing Date. The Mortgage File with
respect to each
Mortgage Loan that is a Serviced Trust Mortgage Loan shall contain
the following
documents:
(i) (A) the original executed Mortgage Note
for the
subject Mortgage Loan, including any power of attorney
related to the
execution thereof (or a lost note affidavit and indemnity
with a copy of
such Mortgage Note attached thereto), together with any and
all
intervening endorsements thereon, endorsed on its face or by
allonge
attached thereto (without recourse, representation or
warranty, express or
implied) to the order of U.S. Bank National Association, as
Trustee for
the registered holders of Merrill Lynch Mortgage Trust
2007-C1, Commercial
Mortgage Pass-Through Certificates, Series 2007-C1, or in
blank, and (B)
in the case of a Loan Combination, a copy of the executed
Mortgage Note
for each related Non-Trust Loan;
(ii) an original or copy of the Mortgage,
together with
originals or copies of any and all intervening assignments
thereof, in
each case (unless not yet returned by the applicable
recording office)
with evidence of recording indicated thereon or certified by
the
applicable recording office;
(iii) an original or copy of any related
Assignment of
Leases (if such item is a document separate from the
Mortgage), together
with originals or copies of any and all intervening
assignments thereof,
in each case (unless not yet returned by the applicable
recording office)
with evidence of recording indicated thereon or certified by
the
applicable recording office;
(iv) an original executed assignment, in
recordable form
(except for completion of the assignee's name and address (if
the
assignment is delivered in blank) and any missing recording
information or
a certified copy of that assignment as sent for recording),
of (a) the
Mortgage, (b) any related Assignment of Leases (if such item
is a document
separate from the Mortgage) and (c) any other recorded
document relating
to the subject Mortgage Loan otherwise included in the
Mortgage File, in
favor of U.S. Bank National Association, as Trustee for the
registered
holders of Merrill Lynch Mortgage Trust 2007-C1, Commercial
Mortgage
Pass-Through Certificates, Series 2007-C1 (or, in the case of
a Loan
Combination, in favor of U.S. Bank National Association, as
Trustee for
the registered holders of Merrill Lynch Mortgage Trust
2007-C1, Commercial
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Mortgage Pass-Through Certificates, Series 2007-C1, and in
its capacity as
lead lender on behalf of the holder(s) of the related
Non-Trust Loan(s)),
or in blank;
(v) an original assignment of all unrecorded
documents
relating to the Mortgage Loan (to the extent not already
assigned pursuant
to clause (iv) above) in favor of U.S. Bank National
Association, as
Trustee for the registered holders of Merrill Lynch Mortgage
Trust
2007-C1, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1
(or, in the case of a Loan Combination, in favor of U.S. Bank
National
Association, as Trustee for the registered holders of Merrill
Lynch
Mortgage Trust 2007-C1, Commercial Mortgage Pass-Through
Certificates,
Series 2007-C1, and in its capacity as lead lender on behalf
of the
holder(s) of the related Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation,
assumption,
substitution and modification agreements in those instances
where the
terms or provisions of the Mortgage or Mortgage Note have
been
consolidated or modified or the subject Mortgage Loan has
been assumed;
(vii) the original or a copy of the policy or
certificate
of lender's title insurance or, if such policy has not been
issued or
located, an original or copy of an irrevocable, binding
commitment (which
may be a pro forma policy or a marked version of the policy
that has been
executed by an authorized representative of the title company
or an
agreement to provide the same pursuant to binding escrow
instructions
executed by an authorized representative of the title
company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of
filing of any
prior UCC Financing Statements in favor of the originator of
the subject
Mortgage Loan or in favor of any assignee prior to the
Trustee (but only
to the extent the Seller had possession of such UCC Financing
Statements
prior to the Closing Date) and, if there is an effective UCC
Financing
Statement in favor of the Seller on record with the
applicable public
office for UCC Financing Statements, a UCC Financing
Statement assignment,
in form suitable for filing in favor of U.S. Bank National
Association, as
Trustee for the registered holders of Merrill Lynch Mortgage
Trust
2007-C1, Commercial Mortgage Pass-Through Certificates,
Series 2007-C1, as
assignee (or, in the case of a Loan Combination, in favor of
U.S. Bank
National Association, as Trustee for the registered holders
of Merrill
Lynch Mortgage Trust 2007-C1, Commercial Mortgage
Pass-Through
Certificates, Series 2007-C1, and in its capacity as lead
lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank;
(ix) an original or a copy of any Ground
Lease, guaranty
or ground lessor estoppel;
(x) an original or a copy of any
intercreditor agreement
relating to permitted debt of the Mortgagor and any
intercreditor
agreement relating to mezzanine debt related to the
Mortgagor;
(xi) an original or a copy of any loan
agreement, any
escrow or reserve agreement, any security agreement, any
management
agreement, any agreed upon
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procedures letter, any lockbox or cash management agreements,
any
environmental reports or any letter of credit (which letter
of credit
shall not be delivered in original form to the Custodian, but
rather to
the applicable Master Servicer), in each case relating to the
subject
Mortgage Loan;
(xii) with respect to a Mortgage Loan secured
by a
hospitality property, a signed copy of any franchise
agreement and/or
franchisor comfort letter; and
(xiii) if such Trust Mortgage Loan is part of a
Loan
Combination, an original or a copy of the related Loan
Combination
Co-Lender Agreement; and
The foregoing Mortgage File delivery requirement shall
be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably
necessary to
permit the Custodian to fulfill its obligations pursuant to Section
2.01(d) of
the Pooling and Servicing Agreement with respect to the Mortgage
Loans,
including paying the fees (as agreed to between the Seller and
Custodian)
charged by the Custodian in connection with the performance by the
Custodian of
the recording, filing and delivery obligations it has undertaken
pursuant to
Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records
that (a) relate
to the administration or servicing of the Mortgage Loans, (b) are
reasonably
necessary for the ongoing administration and/or servicing of such
Mortgage Loans
by the applicable Master Servicer in connection with its duties
under the
Pooling and Servicing Agreement, and (c) are in the possession or
under the
control of the Seller, together with all unapplied escrow amounts
and reserve
amounts in the possession or under the control of the Seller that
relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the
Seller to
the applicable Master Servicer (or, at the direction of such Master
Servicer, to
the appropriate sub-servicer); provided that the Seller shall not
be required to
deliver any draft documents, privileged or other communications,
credit
underwriting, legal or other due diligence analyses, credit
committee briefs or
memoranda or other internal approval documents or data or internal
worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver
to the
Custodian, for its administrative convenience in reviewing the
Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing
sentence
notwithstanding, the failure of the Seller to deliver a mortgage
loan checklist
or a complete mortgage loan checklist shall not give rise to any
liability
whatsoever on the part of the Seller to the Purchaser, the
Custodian or any
other person because the delivery of the mortgage loan checklist is
being
provided to the Custodian solely for its administrative
convenience.
(f) The Seller shall take such actions as are
reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any
letters of
credit in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of
Seller.
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(a) The Seller hereby represents and warrants to and
covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly
organized, validly
existing and in good standing under the laws of the State of
Delaware and
the Seller has taken all necessary corporate action to
authorize the
execution, delivery and performance of this Agreement by it,
and has the
power and authority to execute, deliver and perform this
Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly
authorized,
executed and delivered by the Seller, all requisite action by
the Seller's
directors and officers has been taken in connection
therewith, and
(assuming the due authorization, execution and delivery
hereof by the
Purchaser) this Agreement constitutes the valid, legal and
binding
agreement of the Seller, enforceable against the Seller in
accordance with
its terms, except as such enforcement may be limited by (A)
laws relating
to bankruptcy, insolvency, fraudulent transfer,
reorganization,
receivership, conservatorship or moratorium, (B) other laws
relating to or
affecting the rights of creditors generally, or (C) general
equity
principles (regardless of whether such enforcement is
considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this
Agreement by the
Seller and the Seller's performance and compliance with the
terms of this
Agreement will not (A) violate the Seller's certificate of
incorporation
or bylaws, (B) violate any law or regulation or any
administrative decree
or order to which it is subject or (C) constitute a default
(or an event
which, with notice or lapse of time, or both, would
constitute a default)
under, or result in the breach of, any material contract,
agreement or
other instrument to which the Seller is a party or by which
the Seller is
bound, which default might have consequences that would, in
the Seller's
reasonable and good faith judgment, materially and adversely
affect the
condition (financial or other) or operations of the Seller or
its
properties or materially and adversely affect its performance
hereunder.
(iv) The Seller is not in default with respect
to any
order or decree of any court or any order, regulation or
demand of any
federal, state, municipal or other governmental agency or
body, which
default might have consequences that would, in the Seller's
reasonable and
good faith judgment, materially and adversely affect the
condition
(financial or other) or operations of the Seller or its
properties or
materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by
any agreement
or instrument or subject to any certificate of incorporation,
bylaws or
any other corporate restriction or any judgment, order, writ,
injunction,
decree, law or regulation that would, in the Seller's
reasonable and good
faith judgment, materially and adversely affect the ability
of the Seller
to perform its obligations under this Agreement or that
requires the
consent of any third person to the execution of this
Agreement or the
performance by the Seller of its obligations under this
Agreement (except
to the extent such consent has been obtained).
6
(vi) No consent, approval, authorization or
order of any
court or governmental agency or body is required for the
execution,
delivery and performance by the Seller of or compliance by
the Seller with
this Agreement or the consummation of the transactions
contemplated by
this Agreement except as have previously been obtained, and
no bulk sale
law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by
the
Seller, the transfer of the Mortgage Loans to the Trustee,
and the
execution, delivery or performance of this Agreement by the
Seller,
results or will result in the creation or imposition of any
lien on any of
the Seller's assets or property that would have a material
adverse effect
upon the Seller's ability to perform its duties and
obligations under this
Agreement or materially impair the ability of the Purchaser
to realize on
the Mortgage Loans.
(viii) There is no action, suit, proceeding or
investigation pending or to the knowledge of the Seller,
threatened
against the Seller in any court or by or before any other
governmental
agency or instrumentality which would, in the Seller's good
faith and
reasonable judgment, prohibit its entering into this
Agreement or
materially and adversely affect the validity of this
Agreement or the
performance by the Seller of its obligations under this
Agreement.
(ix) Under generally accepted accounting
principles
("GAAP") and for federal income tax purposes, the Seller will
report the
transfer of the Mortgage Loans to the Purchaser as a sale of
the Mortgage
Loans to the Purchaser in exchange for consideration
consisting of a cash
amount equal to the Purchase Consideration. The consideration
received by
the Seller upon the sale of the Mortgage Loans to the
Purchaser will
constitute at least reasonably equivalent value and fair
consideration for
the Mortgage Loans. The Seller will be solvent at all
relevant times prior
to, and will not be rendered insolvent by, the sale of the
Mortgage Loans
to the Purchaser. The Seller is not selling the Mortgage
Loans to the
Purchaser with any intent to hinder, delay or defraud any of
the creditors
of the Seller.
(x) The Prospectus Supplement contains all
the information
that is required to be provided in respect of the Seller
(that arise from
its role as "sponsor" (within the meaning of Regulation AB)),
the Mortgage
Loans, the related Mortgagors and the related Mortgaged
Properties
pursuant to Regulation AB. For purpose of this Agreement,
"Regulation AB"
shall mean Subpart 229.1100 - Asset-Backed Securities
(Regulation AB), 17
C.F.R. ss.ss.229.1100-229.1123, as such may be amended from
time to time,
and subject to such clarification and interpretation as have
been provided
by the Commission in the adopting release (Asset-Backed
Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506-1,631
(Jan. 7,
2005)) or by the staff of the Commission, or as may be
provided by the
Commission or its staff from time to time.
(b) The Seller hereby makes the representations and
warranties
contained in Schedule I hereto for the benefit of the Purchaser and
the Trustee
for the benefit of the Certificateholders as of the Closing Date
(unless a
different date is specified therein), with respect to (and solely
with respect
to) each Mortgage Loan, subject, however, to the exceptions set
forth on Annex A
to Schedule I of this Agreement.
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(c) If the Seller receives written notice of a
Document Defect or
a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling
and Servicing Agreement, then the Seller shall, not later than 90
days from
receipt of such notice (or, in the case of a Document Defect or
Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days
from any party
to the Pooling and Servicing Agreement discovering such Document
Defect or
Breach, provided the Seller receives such notice in a timely
manner), if such
Document Defect or Breach materially and adversely affects the
value of the
related Mortgage Loan or the interests of the Certificateholders
therein, cure
such Document Defect or Breach, as the case may be, in all material
respects,
which shall include payment of losses and any Additional Trust Fund
Expenses
associated therewith or, if such Document Defect or Breach (other
than omissions
due solely to a document not having been returned by the related
recording
office) cannot be cured within such 90-day period, (i) repurchase
the affected
Mortgage Loan (which, for the purposes of this clause (i), shall
include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling
and Servicing
Agreement) not later than the end of such 90-day period or (ii)
substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan
(which, for
purposes of this clause (ii), shall include an REO Loan) not later
than the end
of such 90-day period (and in no event later than the second
anniversary of the
Closing Date) and pay the applicable Master Servicer for deposit
into its
Collection Account any Substitution Shortfall Amount in connection
therewith;
provided, however, that, unless the Document Defect or Breach would
cause the
Mortgage Loan not to be a Qualified Mortgage, if such Document
Defect or Breach
is capable of being cured but not within such 90-day period and the
Seller has
commenced and is diligently proceeding with the cure of such
Document Defect or
Breach within such 90-day period, the Seller shall have an
additional 90 days to
complete such cure (or, failing such cure, to repurchase or
substitute the
related Mortgage Loan (which, for purposes of such repurchase or
substitution,
shall include an REO Loan)); and provided, further, that with
respect to such
additional 90-day period, the Seller shall have delivered an
officer's
certificate to the Certificate Administrator setting forth the
reason(s) such
Document Defect or Breach is not capable of being cured within the
initial
90-day period and what actions the Seller is pursuing in connection
with the
cure thereof and stating that the Seller anticipates that such
Document Defect
or Breach will be cured within the additional 90-day period; and
provided,
further, that no Document Defect (other than with respect to the
Specially
Designated Mortgage Loan Documents) shall be considered to
materially and
adversely affect the interests of the Certificateholders or the
value of the
related Mortgage Loan unless the document with respect to which the
Document
Defect exists is required in connection with an imminent
enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan,
defending any
claim asserted by any Mortgagor or third party with respect to the
Mortgage
Loan, establishing the validity or priority of any lien or any
collateral
securing the Mortgage Loan or for any immediate servicing
obligations.
A Document Defect or Breach (which Document Defect or
Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan
that is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a
"Crossed Loan
Group"), which Document Defect or Breach does not constitute a
Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Loan
Group (without regard to this paragraph) and is not cured as
provided for above,
shall be deemed to constitute a Document Defect or Breach, as the
case may be,
as to each other Crossed Loan in the subject
8
Crossed Loan Group for purposes of this paragraph and the Seller
shall be
required to repurchase or substitute all such Crossed Loans unless
(1) the
weighted average debt service coverage ratio for all the remaining
Crossed Loans
for the four calendar quarters immediately preceding such
repurchase or
substitution is not less than the weighted average debt service
coverage ratio
for all such Crossed Loans, including the affected Crossed Loan,
for the four
calendar quarters immediately preceding such repurchase or
substitution, and (2)
the weighted average loan to-value ratio for the remaining Crossed
Loans,
determined at the time of repurchase or substitution, based upon an
appraisal
obtained by the Special Servicer at the expense of the Seller shall
not be
greater than the weighted average loan-to-value ratio for all such
Crossed
Loans, including the affected Crossed Loan determined at the time
of repurchase
or substitution, based upon an appraisal obtained by the Special
Servicer at the
expense of the Seller; provided, that if such debt service coverage
and
loan-to-value criteria are satisfied, any other Crossed Loan (that
is not the
Crossed Loan directly affected by the subject Document Defect or
Breach), shall
be released from its cross-collateralization and cross-default
provision so long
as such Crossed Loan (that is not the Crossed Loan directly
affected by the
subject Document Defect or Breach) is held in the Trust Fund; and
provided,
further, that the repurchase or replacement of less than all such
Crossed Loans
and the release of any Crossed Loan from a cross-collateralization
and
cross-default provision shall be further subject to the delivery by
the Seller
to the Certificate Administrator, at the expense of the Seller, of
an Opinion of
Counsel to the effect that such release would not cause either of
REMIC I or
REMIC II to fail to qualify as a REMIC under the Code or result in
the
imposition of any tax on "prohibited transactions" or
"contributions" after the
Startup Day under the REMIC Provisions. In the event that one or
more of such
other Crossed Loans satisfy the aforementioned criteria, the Seller
may elect
either to repurchase or substitute for only the affected Crossed
Loan as to
which the related Document Defect or Breach exists or to repurchase
or
substitute for all of the Crossed Loans in the related Crossed Loan
Group. All
documentation relating to the termination of the
cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at
the expense
of the Seller and, where required, with the consent of the related
Mortgagor.
For a period of two years from the Closing Date, so long as there
remains any
Mortgage File relating to a Mortgage Loan as to which there is any
uncured
Document Defect or Breach known to the Seller that existed as of
the Closing
Date, the Seller shall provide, once every 90 days, the officer's
certificate to
the Certificate Administrator described above as to the reason(s)
such Document
Defect or Breach remains uncured and as to the actions being taken
to pursue
cure; provided, however, that, without limiting the effect of the
foregoing
provisions of this Section 3(c), if such Document Defect or Breach
shall
materially and adversely affect the value of such Mortgage Loan or
the interests
of the holders of the Certificates therein (subject to the second
and third
provisos in the sole sentence of the preceding paragraph), the
Seller shall in
all cases on or prior to the second anniversary of the Closing Date
either cause
such Document Defect or Breach to be cured or repurchase or
substitute for the
affected Mortgage Loan (for the avoidance of doubt, the foregoing
two-year
period shall not be deemed to be a time limitation on the Seller's
right to cure
a Document Defect or Breach as set forth in this Section 3). The
delivery of a
commitment to issue a policy of lender's title insurance as
described in
representation 8 set forth on Schedule I hereto in lieu of the
delivery of the
actual policy of lender's title insurance shall not be considered a
Document
Defect or Breach with respect to any Mortgage File if such actual
policy of
insurance is delivered to the Custodian not later than the 180th
day following
the Closing Date.
9
To the extent that the Seller is required to repurchase
or
substitute for a Crossed Loan hereunder in the manner prescribed
above in this
Section 3(c) while the Trustee continues to hold any other Crossed
Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce
any remedies
against the other's Primary Collateral (as defined below), but each
is permitted
to exercise remedies against the Primary Collateral securing its
respective
Crossed Loan(s), so long as such exercise does not materially
impair the ability
of the other party to exercise its remedies against the Primary
Collateral
securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair
the ability of
the other party to exercise its remedies with respect to the
Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller
and the
Purchaser shall forbear from exercising such remedies until the
Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be
modified in
a manner consistent with this Agreement to remove the threat of
material
impairment as a result of the exercise of remedies or some other
mutually agreed
upon accommodation can be reached. Any reserve or other cash
collateral or
letters of credit securing the Crossed Loans shall be allocated
between such
Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related
Mortgage Loan documents do not so provide, then on a pro rata basis
based upon
their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a
Crossed Loan is modified to terminate the related
cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the
Certificate
Administrator an Opinion of Counsel that such modification shall
not cause an
Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean
the Mortgaged
Property directly securing a Crossed Loan and excluding any
property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this
Section
3(c), if there is a Document Defect or Breach (which Document
Defect or Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and, to the extent not
covered by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee,
the
Certificate Administrator, the Custodian or the Trust Fund in
connection with
such release, (ii) the remaining Mortgaged Property(ies) satisfy
the
requirements, if any, set forth in the Mortgage Loan documents and
the Seller
provides an opinion of counsel to the effect that such release
would not cause
either of REMIC I or REMIC II to fail to qualify as a REMIC under
the Code or
result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) each
Rating Agency then rating the Certificates shall have provided
written
confirmation that such release would not cause the then-current
ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
10
The foregoing provisions of this Section 3(c)
notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this
paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be
the cure of
such breach by the Seller, which cure shall be effected through the
payment by
the Seller of such costs and expenses (without regard to whether
such costs and
expenses are material or not) specified in such representation that
have not, at
the time of such cure, been received by the applicable Master
Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or
substitution
of the related Mortgage Loan. Following the Seller's remittance of
funds in
payment of such costs and expenses, the Seller shall be deemed to
have cured the
breach of representation 30 in all respects. To the extent any fees
or expenses
that are the subject of a cure by the Seller are subsequently
obtained from the
related Mortgagor, the cure payment made by the Seller shall be
returned to the
Seller. Notwithstanding the prior provisions of this paragraph, the
Seller,
acting in its sole discretion, may effect a repurchase or
substitution (in
accordance with the provisions of this Section 3(c) setting forth
the manner in
which a Mortgage Loan may be repurchased or substituted) of a
Mortgage Loan, as
to which representation 30 set forth on Schedule I has been
breached, in lieu of
paying the costs and expenses that were the subject of the breach
of
representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or
substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a
certificate
from a Servicing Officer certifying as to the receipt of the
applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or
Substitution
Shortfall Amount(s), as applicable, in the applicable Master
Servicer's
Collection Account, and, if applicable, the delivery of the
Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i)
the Trustee
shall be required to execute and deliver such endorsements and
assignments as
are provided to it by the applicable Master Servicer or the Seller,
in each case
without recourse, representation or warranty, as shall be necessary
to vest in
the Seller the legal and beneficial ownership of each repurchased
Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian,
the applicable Master Servicer and the Special Servicer shall each
tender to the
Seller, upon delivery to each of them of a receipt executed by the
Seller, all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and
the Special
Servicer shall release to the Seller any Escrow Payments and
Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall
deliver the
related Mortgage File to the Custodian and certify that the
substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan
or Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified
Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under
this
Agreement if, after such substitution, the aggregate of the Stated
Principal
Balances of all Qualified Substitute Mortgage Loans which have been
substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of
all the Mortgage Loans and the Other
11
Mortgage Loans. Periodic Payments due with respect to any Qualified
Substitute
Mortgage Loan on or prior to the related date of substitution shall
not be part
of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies
available to the
Purchaser, the Certificateholders, or the Trustee (on whose behalf
the
Certificate Administrator may act) on behalf of the
Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of
any
representation or warranty set forth in or required to be made
pursuant to this
Section 3.
SECTION 4. Representations, Warranties and Covenants of
the
Purchaser. In order to induce the Seller to enter into this
Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit
of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized,
validly
existing and in good standing under the laws of the State of
Delaware and the
Purchaser has taken all necessary corporate action to authorize the
execution,
delivery and performance of this Agreement by it, and has the power
and
authority to execute, deliver and perform this Agreement and all
transactions
contemplated hereby.
(b) This Agreement has been duly and validly
authorized, executed
and delivered by the Purchaser, all requisite action by the
Purchaser's
directors and officers has been taken in connection therewith, and
(assuming the
due authorization, execution and delivery hereof by the Seller)
this Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent
transfer, reorganization, receivership, conservatorship or
moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or
(C) general
equity principles (regardless of whether such enforcement is
considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by
the Purchaser
and the Purchaser's performance and compliance with the terms of
this Agreement
will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B)
violate any law or regulation or any administrative decree or order
to which it
is subject or (C) constitute a default (or an event which, with
notice or lapse
of time, or both, would constitute a default) under, or result in
the breach of,
any material contract, agreement or other instrument to which the
Purchaser is a
party or by which the Purchaser is bound, which default might have
consequences
that would, in the Purchaser's reasonable and good faith judgment,
materially
and adversely affect the condition (financial or other) or
operations of the
Purchaser or its properties or have consequences that would
materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any
agreement or
instrument or subject to any certificate of incorporation, bylaws
or any other
corporate restriction or any judgment, order, writ, injunction,
decree, law or
regulation that would, in the Purchaser's reasonable and good faith
judgment,
materially and adversely affect the ability of the Purchaser to
perform its
obligations under this Agreement or that requires the consent of
any third
person to
12
the execution of this Agreement or the performance by the Purchaser
of its
obligations under this Agreement (except to the extent such consent
has been
obtained).
(e) Except as may be required under federal or state
securities
laws (and which will be obtained on a timely basis), 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 by the Purchaser of, or
compliance by
the Purchaser with, this Agreement, or the consummation by the
Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes,
the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for
consideration
consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or
investigation pending
or to the knowledge of the Purchaser, threatened against the
Purchaser in any
court or by or before any other governmental agency or
instrumentality which
would materially and adversely affect the validity of this
Agreement or any
action taken in connection with the obligations of the Purchaser
contemplated
herein, or which would be likely to impair materially the ability
of the
Purchaser to enter into and/or perform under the terms of this
Agreement.
(h) The Purchaser is not in default with respect to
any order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or other governmental agency or body, which default might
have
consequences that would, in the Purchaser's reasonable and good
faith judgment,
materially and adversely affect the condition (financial or other)
or operations
of the Purchaser or its properties or might have consequences that
would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the
Mortgage Loans
(the "Closing") shall be held at the offices of Thacher Proffitt
& Wood LLP on
the Closing Date. The Closing shall be subject to each of the
following
conditions:
(a) All of the representations and warranties of the
Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement and all of
the representations and warranties of the Purchaser set forth in
Section 4 of
this Agreement shall be true and correct in all material respects
as of the
Closing Date;
(b) All documents specified in Section 6 of this
Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the
Purchaser, the Seller, the Underwriters and their respective
counsel in their
reasonable discretion, shall be duly executed and delivered by all
signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to
the Custodian
and the applicable Master Servicer, respectively, all documents
represented to
have been or required to be delivered to the Custodian and such
Master Servicer
pursuant to Section 2 of this Agreement;
13
(d) All other terms and conditions of this Agreement
required to
be complied with on or before the Closing Date shall have been
complied with in
all material respects and the Seller and the Purchaser shall have
the ability to
comply with all terms and conditions and perform all duties and
obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses
payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the
Closing Date;
(f) One or more letters from the independent
accounting firm of
Deloitte & Touche LLP, in form satisfactory to the Purchaser
and relating to
certain information regarding the Mortgage Loans and Certificates
as set forth
in the Prospectus (as defined in Section 6(d) of this Agreement)
and Prospectus
Supplement (as defined in Section 6(d) of this Agreement),
respectively, shall
have been delivered; and
(g) The Seller shall have executed and delivered
concurrently
herewith that certain Indemnification Agreement, dated as of July
31, 2007,
among the Seller, Merrill Lynch Mortgage Lending, Inc., LaSalle
Bank National
Association, Wells Fargo Bank, National Association, the Purchaser,
the
Underwriters and the Initial Purchaser.
Both parties agree to use their best reasonable efforts
to perform
their respective obligations hereunder in a manner that will enable
the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents
shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser
and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by
the parties
thereto and (iii) the agreement(s) pursuant to which the servicing
rights with
respect to the Mortgage Loans are being sold to the applicable
Master Servicer
(such agreement(s), individually or collectively, as the case may
be, the
"Servicing Rights Purchase Agreement");
(b) An officer's certificate of the Seller, executed
by a duly
authorized officer of the Seller and dated the Closing Date, and
upon which the
Purchaser, the Underwriters and the Initial Purchaser may rely, to
the effect
that: (i) the representations and warranties of the Seller in this
Agreement are
true and correct in all material respects at and as of the Closing
Date with the
same effect as if made on such date; and (ii) the Seller has, in
all material
respects, complied with all the agreements and satisfied all the
conditions on
its part that are required under this Agreement to be performed or
satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the
Seller (signed
in his/her capacity as an officer), dated the Closing Date, and
upon which the
Purchaser may rely, to the effect that each individual who, as an
officer or
representative of the Seller, signed this Agreement, the
Indemnification
Agreement or any other document or certificate delivered on or
before the
Closing Date in connection with the transactions contemplated
herein or therein,
was at the respective times of such signing and delivery, and is as
of the
Closing Date, duly elected or
14
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;
(d) An officer's certificate from an officer of the
Seller (signed
in his/her capacity as an officer), dated the Closing Date, and
upon which the
Purchaser, the Underwriters and Initial Purchaser may rely, to the
effect that
(i) such officer has carefully examined the Specified Portions (as
defined
below) of the Free Writing Prospectus and nothing has come to
his/her attention
that leads him/her to believe that the Specified Portions of the
Free Writing
Prospectus (when read together with the free writing prospectus
distributed by
e-mail to potential investors in the Certificates on July 27, 2007,
as
supplemented by the free writing prospectus distributed by e-mail
to potential
investors in the certificates on July 31, 2007, and attached hereto
as Exhibit
A), as of the Time of Sale or as of the Closing Date, included or
include any
untrue statement of a material fact relating to the Mortgage Loans
or omitted or
omit to state therein a material fact necessary in order to make
the statements
therein relating to the Mortgage Loans, in light of the
circumstances under
which they were made, not misleading, (ii) such officer has
carefully examined
the Specified Portions (as defined below) of the Prospectus
Supplement and
nothing has come to his/her attention that leads him/her to believe
that the
Specified Portions of the Prospectus Supplement, as of the date of
the
Prospectus Supplement or as of the Closing Date, included or
include any untrue
statement of a material fact relating to the Mortgage Loans or
omitted or omit
to state therein a material fact necessary in order to make the
statements
therein relating to the Mortgage Loans, in light of the
circumstances under
which they were made, not misleading, and (iii) such officer has
carefully
examined the Specified Portions (as defined below) of the
Memorandum (pursuant
to which certain classes of the Private Certificates are being
privately
offered) and nothing has come to his/her attention that leads
him/her to believe
that the Specified Portions of the Memorandum, as of the date
thereof or as of
the Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein related to
the Mortgage
Loans, in the light of the circumstances under which they were
made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus
shall
consist of Annex A-1 to the Free Writing Prospectus, entitled
"Certain
Characteristics of the Mortgage Loans" (insofar as the information
contained in
Annex A-1 relates to the Mortgage Loans sold by the Seller
hereunder), Annex A-1
(YM Footnotes) to the Prospectus Supplement, entitled "Yield
Maintenance
Formulas"(insofar as the information contained in Annex A-1(YM
Footnotes)
relates to the Mortgage Loans sold by the Seller hereunder), Annex
A-2 to the
Free Writing Prospectus, entitled "Certain Statistical Information
Regarding the
Mortgage Loans" (insofar as the information contained in Annex A-2
relates to
the Mortgage Loans sold by the Seller hereunder), Annex B to the
Free Writing
Prospectus entitled "Certain Characteristics Regarding Multifamily
Properties"
(insofar as the information contained in Annex B relates to the
Mortgage Loans
sold by the Seller hereunder), Annex C to the Free Writing
Prospectus, entitled
"Preliminary Structural and Collateral Term Sheet" (insofar as the
information
contained in Annex C relates to the Mortgage Loans sold by the
Seller
hereunder), the CD-ROM which accompanies the Free Writing
Prospectus (insofar as
such CD-ROM is consistent with Annex A-1, Annex A-2 and/or Annex B
(only insofar
as the information contained therein relates to the Mortgage Loans
sold by the
Seller hereunder)), and the following sections of the Free Writing
Prospectus
(only to the extent that any such information relates to the Seller
(solely in
its
15
capacity as a seller, sponsor or originator of the Mortgage Loans
sold by the
Seller hereunder) or the Mortgage Loans sold by the Seller
hereunder and
exclusive of any statements in such sections that purport to
describe the
servicing and administration provisions of the Pooling and
Servicing Agreement
and exclusive of aggregated numerical information that includes the
Other
Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering
Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool",
"Transaction
Participants--The Sponsors" and "Affiliations and Certain
Relationships and
Related Transactions".
The "Specified Portions" of the Prospectus Supplement
shall consist
of Annex A-1 to the Prospectus Supplement, entitled "Certain
Characteristics of
the Mortgage Loans" (insofar as the information contained in Annex
A-1 relates
to the Mortgage Loans sold by the Seller hereunder), Annex A-1 (YM
Footnotes) to
the Prospectus Supplement, entitled "Yield Maintenance
Formulas"(insofar as the
information contained in Annex A-1(YM Footnotes) relates to the
Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus
Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans"
(insofar as the
information contained in Annex A-2 relates to the Mortgage Loans
sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled
"Certain
Characteristics Regarding Multifamily Properties" (insofar as the
information
contained in Annex B relates to the Mortgage Loans sold by the
Seller
hereunder), Annex C to the Prospectus Supplement, entitled
"Description of the
Ten Largest Mortgage Loans" (insofar as the information contained
in Annex C
relates to the Mortgage Loans sold by the Seller hereunder), the
CD-ROM which
accompanies the Prospectus Supplement (insofar as such CD-ROM is
consistent with
Annex A-1, Annex A-2 and/or Annex B (only insofar as the
information contained
therein related to the Mortgage Loans sold by the Seller
hereunder)), and the
following sections of the Prospectus Supplement (only to the extent
that any
such information relates to the Seller (solely in its capacity as a
seller,
sponsor or originator of the Mortgage Loans sold by the Seller
hereunder) or the
Mortgage Loans sold by the Seller hereunder and exclusive of any
statements in
such sections that purport to describe the servicing and
administration
provisions of the Pooling and Servicing Agreement and exclusive of
aggregated
numerical information that includes the Other Mortgage Loans):
"Summary of
Prospectus Supplement--Relevant Parties--Sponsors/Mortgage Loan
Sellers",
"Summary of Prospectus Supplement--The Mortgage Loans and the
Mortgaged Real
Properties", "Risk Factors--Risks Related to the Mortgage Loans",
"Description
of the Mortgage Pool", "Transaction Participants--The Sponsors" and
"Affiliations and Certain Relationships and Related Transactions".
The "Specified Portions" of the Memorandum shall
consist of the
Specified Portions of the Prospectus Supplement (as attached as an
exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement,
the following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus
dated July
16, 2007, and relating to the Publicly Offered Certificates.
16
"Memorandum" means the confidential Private Placement
Memorandum
dated July 31, 2007, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 10, 2007.
"Prospectus Supplement" means the prospectus supplement
dated July
31, 2007, that supplements the Prospectus and relates to the
Publicly-Offered
Certificates; and
"Time of Sale" means July 31, 2007, at 3:30 p.m.
(e) Each of: (i) a certificate of a duly authorized
officer of
Seller confirming that all necessary internal approvals authorizing
the Seller's
entering into the transactions contemplated by this Agreement has
been obtained,
(ii) the certificate of incorporation and bylaws of the Seller, and
(iii) an
original or a copy of a certificate of good standing of the Seller
issued by the
State of Delaware not earlier than 30 days prior to the Closing
Date;
(f) A written opinion of counsel for the Seller
relating to
organizational and enforceability matters (which opinion may be
from in-house
counsel, outside counsel or a combination thereof), reasonably
satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and
addressed to the Purchaser, the Trustee, the Certificate
Administrator, the
Custodian, the Underwriters, the Initial Purchaser and each of the
Rating
Agencies, together with such other written opinions, including as
to insolvency
matters, as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents
as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is
terminated, both
the Seller and the Purchaser shall pay their respective share of
the transaction
expenses incurred in connection with the transactions contemplated
herein as set
forth in the closing statement prepared by the Purchaser and
delivered to and
approved by the Seller on or before the Closing Date, and in the
memorandum of
understanding to which the Seller and the Purchaser (or an
affiliate thereof)
are parties with respect to the transactions contemplated by this
Agreement.
SECTION 8. Treatment as Sale. It is the express intent
of the
parties hereto that the conveyance of the Mortgage Loans by the
Seller to the
Purchaser as provided in Section 2 of this Agreement be, and be
construed as, a
sale of the Mortgage Loans by the Seller to the Purchaser and not
as a pledge of
the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other
obligation of the Seller.
SECTION 9. Notice of Exchange Act Reportable Events.
The Seller
hereby agrees to deliver to the Purchaser any disclosure
information relating to
any event, specifically relating to the Seller (that arise from its
role as
sponsor with respect to the Mortgage Loans), reasonably determined
in good faith
by the Purchaser as required to be reported on Form 8-K, Form 10-D
or Form 10-K
by the Trust Fund (in formatting reasonably appropriate for
inclusion in such
form) insofar as such disclosure is required under Item 1117 or
1119 of
Regulation AB or Item 1.03 to Form 8-K. The Seller shall use
reasonable efforts
to deliver proposed disclosure language relating to any event,
specifically
relating to the Seller (that arise from its role as
17
sponsor with respect to the Mortgage Loans), described under Item
1117 or 1119
of Regulation AB or Item 1.03 to Form 8-K to the Purchaser as soon
as reasonably
practicable after the Seller becomes aware of such event and in no
event more
than two (2) business days following the occurrence of such event
if such event
is reportable under Item 1.03 to Form 8-K. The obligation of the
Seller to
provide the above referenced disclosure materials in any fiscal
year of the
Trust Fund will terminate upon the Trustee or Certificate
Administrator filing a
Form 15 with respect to the Trust Fund as to that fiscal year in
accordance with
Section 8.16 of the Pooling and Servicing Agreement or the
reporting
requirements with respect to the Trust Fund under the Securities
Exchange Act of
1934, as amended (the "1934 Act"), have otherwise automatically
suspended. The
Seller hereby acknowledges that the information to be provided by
it pursuant to
this Section 9 will be used in the preparation of reports on Form
8-K, Form 10-D
or Form 10-K with respect to the Trust Fund as required under the
1934 Act and
any applicable rules promulgated thereunder and as required under
Regulation AB.
SECTION 10. Notices. All notices, copies, requests,
consents,
demands and other communications required hereunder shall be in
writing and sent
either by certified mail (return receipt requested) or by courier
service (proof
of delivery requested) to the intended recipient at the "Address
for Notices"
specified for such party on Exhibit A hereto, or as to either
party, at such
other address as shall be designated by such party in a notice
hereunder to the
other party. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
received, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements
to Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part,
provision,
representation, warranty or covenant of this Agreement that is
prohibited or
which is held to be void or unenforceable shall be ineffective to
the extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof. Any part, provision, representation, warranty or
covenant of
this Agreement that is prohibited or unenforceable or is held to be
void or
unenforceable in any particular jurisdiction shall, as to such
jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without
invalidating the remaining provisions hereof, and any such
prohibition or
unenforceability in any particular jurisdiction shall not
invalidate or render
unenforceable such provision in any other jurisdiction. To the
extent permitted
by applicable law, the parties hereto waive any provision of law
that prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be
executed in any
number of counterparts, each of which shall be an original, but
which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; WAIVER OF TRIAL BY JURY.
THIS AGREEMENT
AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO
SHALL BE GOVERNED IN ACCORDANCE WITH THE
18
INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO INTEND
THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY
TO THIS AGREEMENT. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST
EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 15. Attorneys' Fees. If any legal action, suit
or proceeding
is commenced between the Seller and the Purchaser regarding their
respective
rights and obligations under this Agreement, the prevailing party
shall be
entitled to recover, in addition to damages or other relief, costs
and expenses,
attorneys' fees and court costs (including, without limitation,
expert witness
fees). As used herein, the term "prevailing party" shall mean the
party that
obtains the principal relief it has sought, whether by compromise
settlement or
judgment. If the party that commenced or instituted the action,
suit or
proceeding shall dismiss or discontinue it without the concurrence
of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the
Purchaser agree
to execute and deliver such instruments and take such further
actions as the
other party may, from time to time, reasonably request in order to
effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and
obligations of
the Seller under this Agreement shall not be assigned by the Seller
without the
prior written consent of the Purchaser, except that any person into
which the
Seller may be merged or consolidated, or any corporation resulting
from any
merger, conversion or consolidation to which the Seller is a party,
or any
person succeeding to all or substantially all of the business of
the Seller,
shall be the successor to the Seller hereunder. The Purchaser has
the right to
assign its interest under this Agreement, in whole or in part, as
may be
required to effect the purposes of the Pooling and Servicing
Agreement, and the
assignee shall, to the extent of such assignment, succeed to the
rights and
obligations hereunder of the Purchaser. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries
hereof), the
Initial Purchaser (also as an intended third party beneficiary
hereof) and their
permitted successors and assigns. This Agreement is enforceable by
the
Underwriters, the Initial Purchaser and the other third party
beneficiaries
hereto in all respects to the same extent as if they had been
signatories
hereof.
SECTION 18. Amendments. No term or provision of this
Agreement may
be waived or modified unless such waiver or modification is in
writing and
signed by a duly authorized officer of the party hereto against
whom such waiver
or modification is sought to be enforced. The Seller's obligations
hereunder
shall in no way be expanded, changed or otherwise affected by any
amendment of
or modification to the Pooling and Servicing Agreement, including,
without
limitation, any defined terms therein, unless the Seller has
consented to such
amendment or modification in writing.
19
SECTION 19. Accountants' Letters. The parties hereto
shall cooperate
with Deloitte & Touche LLP in making available all information
and taking all
steps reasonably necessary to permit such accountants to deliver
the letters
required by the Underwriting Agreement and the Certificate Purchase
Agreement.
SECTION 20. Knowledge. Whenever a representation or
warranty or
other statement in this Agreement (including, without limitation,
Schedule I
hereto) is made with respect to a Person's "knowledge," such
statement refers to
such Person's employees or agents who were or are responsible for
or involved
with the indicated matter and have actual knowledge of the matter
in question.
SECTION 21. Cross-Collateralized Mortgage Loans. Each
Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of
reference,
the Mortgaged Property that relates or corresponds to any of the
Mortgage Loans
in a Crossed Loan Group shall be the property identified in the
Mortgage Loan
Schedule as corresponding thereto. The provisions of this
Agreement, including,
without limitation, each of the representations and warranties set
forth in
Schedule I hereto and each of the capitalized terms used herein but
defined in
the Pooling and Servicing Agreement, shall be interpreted in a
manner consistent
with this Section 21. In addition, if there exists with respect to
any Crossed
Loan Group only one original of any document referred to in the
definition of
"Mortgage File" in this Agreement and covering all the Mortgage
Loans in such
Crossed Loan Group, the inclusion of the original of such document
in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan
Group shall be
deemed an inclusion of such original in the Mortgage File for each
such Mortgage
Loan.
[SIGNATURE PAGES TO FOLLOW]
20
IN WITNESS WHEREOF, the Seller and the Purchaser have
caused their
names to be signed hereto by their respective duly authorized
officers as of the
date first above written.
SELLER
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Wendy Yam
--------------------------------------------
Name: Wendy Yam
Title: Authorized Signatory
PURCHASER
MERRILL LYNCH MORTGAGE INVESTORS,
INC.
By: /s/ David M. Rodgers
--------------------------------------------
Name: David M. Rodgers
Title: Executive Vice President
GECC MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
Seller:
Address for Notices:
General Electric Capital Corporation
280 Park Avenue, 8th Floor
New York, New York 10017
Attention: Anuj Gupta, Managing Director
with a copy to:
General Electric Capital Corporation
16479 Dallas Parkway
Suite 500
Addison, Texas 75000
Attention David Martindale
and with a copy to:
Patricia A. DeLuca, Esq.
GE Commercial Finance
901 Main Avenue, 4th Floor
Norwalk, Connecticut 06851
Purchaser:
Address for Notices:
Merrill Lynch Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
250 Vesey Street
New York, New York 10080
Attention: David M. Rodgers
with a copy to:
Merrill Lynch Mortgage Investors, Inc.
c/o Global Commercial Real Estate
4 World Financial Center, 16th Floor
250 Vesey Street
New York, New York 10080
Attn: Director of CMBS Securitizations
and to:
Merrill Lynch Mortgage Investors, Inc.
4 World Financial Center, 12th Floor
250 Vesey Street
GECC MORTGAGE LOAN PURCHASE AGREEMENT
New York, New York 10080
Attention: General Counsel for Global
Commercial Real Estate in the Office
of the General Counsel
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a
Mortgaged Property
shall mean the value of such Mortgaged Property as determined by
the appraisal
(and subject to the assumptions set forth in the appraisal)
performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth
in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true
and correct in
all material respects (and contains all the items listed in the
definition of
"Mortgage Loan Schedule") as of the dates of the information set
forth therein
or, if not set forth therein, and in all events no earlier than, as
of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to
the transfer
of the Mortgage Loans to the Purchaser, the Seller had good title
to, and was
the sole owner of, each Mortgage Loan. The Seller has full right,
power and
authority to transfer and assign each Mortgage Loan to or at the
direction of
the Purchaser free and clear of any and all pledges, liens,
charges, security
interests, participation interests and/or other interests and
encumbrances
(except for certain servicing rights as provided in the Pooling and
Servicing
Agreement, any permitted subservicing agreements and servicing
rights purchase
agreements pertaining thereto and the rights of a holder of a
related Non-Trust
Loan pursuant to a Loan Combination Intercreditor Agreement). The
Seller has
validly and effectively conveyed to the Purchaser all legal and
beneficial
interest in and to each Mortgage Loan free and clear of any pledge,
lien,
charge, security interest or other encumbrance (except for certain
servicing
rights as provided in the Pooling and Servicing Agreement, any
permitted
subservicing agreements and servicing rights purchase agreements
pertaining
thereto); provided that recording and/or filing of various transfer
documents
are to be completed after the Closing Date as contemplated hereby
and by the
Pooling and Servicing Agreement. The sale of the Mortgage Loans to
the Purchaser
or its designee does not require the Seller to obtain any
governmental or
regulatory approval or consent that has not been obtained. Each
Mortgage Note
is, or shall be as of the Closing Date, properly endorsed to the
Purchaser or
its designee and each such endorsement is, or shall be as of the
Closing Date,
genuine.
3. Payment Record. No scheduled payment of principal
and/or
interest under any Mortgage Loan was 30 days or more past due as of
the Due Date
for such Mortgage Loan in August 2007, without giving effect to any
applicable
grace period, nor was any such payment 30 days or more delinquent
since the date
of origination of any Mortgage Loan, without giving effect to any
applicable
grace period.
4. Lien; Valid Assignment. Each Mortgage related to
and delivered
in connection with each Mortgage Loan constitutes a valid and,
subject to the
limitations and exceptions set forth in representation 13 below,
enforceable
first priority lien upon the related Mortgaged Property, prior to
all other
liens and encumbrances, and there are no liens and/or
encumbrances that are pari passu with the lien of such Mortgage, in
any event
subject, however, to the following (collectively, the "Permitted
Encumbrances"):
(a) the lien for current real estate taxes, ground rents, water
charges, sewer
rents and assessments not yet delinquent or accruing interest or
penalties; (b)
covenants, conditions and restrictions, rights of way, easements
and other
matters that are of public record and/or are referred to in the
related lender's
title insurance policy (or, if not yet issued, referred to in a pro
forma title
policy, or a "marked-up" commitment binding upon the title insurer
or escrow
instructions binding on the title insurer and irrevocably
obligating the title
insurer to issue such title insurance policy); (c) exceptions and
exclusions
specifically referred to in such lender's title insurance policy
(or, if not yet
issued, referred to in a pro forma title policy, a "marked-up"
commitment
binding upon the title insurer or escrow instructions binding on
the title
insurer and irrevocably obligating the title insurer to issue such
title
insurance policy); (d) other matters to which like properties are
commonly
subject; (e) the rights of tenants (as tenants only) under leases
(including
subleases) pertaining to the related Mortgaged Property; (f) if
such Mortgage
Loan constitutes a Crossed Loan, the lien of the Mortgage for
another Mortgage
Loan contained in the same Crossed Loan Group; (g) if the related
Mortgaged
Property consists of one or more units in a condominium, the
related condominium
declaration; and (h) the rights of the holder of any Non-Trust Loan
that is part
of a related Loan Combination to which any such Mortgage Loan
belongs. The
Permitted Encumbrances do not, individually or in the aggregate,
materially and
adversely interfere with the security intended to be provided by
the related
Mortgage, the current principal use of the related Mortgaged
Property, the Value
of the Mortgaged Property or the current ability of the related
Mortgaged
Property to generate income sufficient to service such Mortgage
Loan. The
related assignment of such Mortgage executed and delivered in favor
of the
Trustee is in recordable form (but for insertion of the name and
address of the
assignee and any related recording information which is not yet
available to the
Seller) and constitutes a legal, valid, binding and, subject to the
limitations
and exceptions set forth in representation 13 below, enforceable
assignment of
such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as
part of the
related Mortgage File, an Assignment of Leases (either as a
separate instrument
or as part of the Mortgage) that relates to and was delivered in
connection with
each Mortgage Loan and that establishes and creates a valid,
subsisting and,
subject to the limitations and exceptions set forth in
representation 13 below,
enforceable first priority lien on and security interest in,
subject to
applicable law, the property, rights and interests of the related
Mortgagor
described therein, except for Permitted Encumbrances and except for
the holder
of any Non-Trust Loan that is part of a related Loan Combination to
which any
such Mortgage Loan belongs, and except that a license may have been
granted to
the related Mortgagor to exercise certain rights and perform
certain obligations
of the lessor under the relevant lease or leases, including,
without limitation,
the right to operate the related leased property so long as no
event of default
has occurred under such Mortgage Loan; and each assignor thereunder
has the full
right to assign the same. The related assignment of any Assignment
of Leases not
included in a Mortgage, executed and delivered in favor of the
Trustee is in
recordable form (but for insertion of the name and address of the
assignee and
any related recording information which is not yet available to the
Seller), and
constitutes a legal, valid, binding and, subject to the limitations
and
exceptions set forth in representation 13 below, enforceable
assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The
related
Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the
collection of
rents or for the related mortgagee to enter into possession of the
related
Mortgaged Property to collect the rents or provides for rents to be
paid
directly to the related mortgagee, if there is an event of default
beyond
applicable notice and grace periods. Except for the holder of the
related
Non-Trust Loan with respect to any Mortgage Loan that is part of a
Loan
Combination, no person other than the related Mortgagor and, in
certain
instances the related Mortgagee, owns any interest in any payments
due under the
related leases on which the Mortgagor is the landlord, covered by
the related
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In
the case of
each Mortgage Loan, except by a written instrument which has been
delivered to
the Purchaser or its designee as a part of the related Mortgage
File, (a) the
related Mortgage (including any amendments or supplements thereto
included in
the related Mortgage File) has not been impaired, waived, modified,
altered,
satisfied, canceled, subordinated or rescinded in any manner, that,
in each
case, would materially and adversely interfere with the security
intended to be
provided by such Mortgage, (b) neither the related Mortgaged
Property nor any
material portion thereof has been released from the lien of such
Mortgage and
(c) the related Mortgagor has not been released from its
obligations under such
Mortgage, in whole or in material part. With respect to each
Mortgage Loan,
since the later of (a) July 6, 2007 and (b) the closing date of
such Mortgage
Loan, the Seller has not executed any written instrument that (i)
impaired,
satisfied, canceled, subordinated or rescinded such Mortgage Loan,
(ii) waived,
modified or altered any material term of such Mortgage Loan, (iii)
released the
Mortgaged Property or any material portion thereof from the lien of
the related
Mortgage, or (iv) released the related Mortgagor from its
obligations under such
Mortgage Loan in whole or material part. For avoidance of doubt,
the preceding
sentence does not relate to any release of escrows by the Seller or
a servicer
on its behalf.
7. Condition of Property; Condemnation. In the case
of each
Mortgage Loan, except as set forth in an engineering report
prepared by an
independent engineering consultant in connection with the
origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's
knowledge, in
good repair and free and clear of any damage that would materially
and adversely
affect its Value as security for such Mortgage Loan (except in any
such case
where an escrow of funds, letter of credit or insurance coverage
exists
sufficient to effect the necessary repairs and maintenance). As of
the date of
origination of the Mortgage Loan, there was no proceeding pending
for the
condemnation of all or any material part of the related Mortgaged
Property. As
of the Closing Date, the Seller has not received notice and has no
knowledge of
any proceeding pending for the condemnation of all or any material
portion of
the Mortgaged Property securing any Mortgage Loan. As of the date
of origination
of each Mortgage Loan and, to the Seller's knowledge based upon
surveys and/or
the title insurance policy referred to in representation 8 below,
as of the date
hereof, (a) none of the material improvements on the related
Mortgaged Property,
which were included for the purpose of determining the Value of the
related
Mortgaged Property, encroach upon the boundaries and, to the extent
in effect at
the time of construction, do not encroach upon the building
restriction lines of
such property, and none of the material improvements on the related
Mortgaged
Property encroached over any easements, except, in each case, for
encroachments
that are insured against by the lender's title insurance policy
referred to in
representation 8 below or that do not
materially and adversely affect the Value or current use of such
Mortgaged
Property and (b) no improvements on adjoining properties materially
encroached
upon such Mortgaged Property so as to materially and adversely
affect the Value
of such Mortgaged Property, except those encroachments that are
insured against
by the lender's title insurance policy referred to in
representation 8 below.
8. Title Insurance. Each Mortgaged Property securing
a Mortgage
Loan is covered by an American Land Title Association (or an
equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such
policy has yet
to be issued, by a pro forma policy or a "marked up" commitment
binding on the
title insurer or escrow instructions binding on the title insurer
irrevocably
obligating the title insurer to issue the title insurance policy)
in the
original principal amount of such Mortgage Loan after all advances
of principal,
insuring that the related Mortgage is a valid first priority lien
on such
Mortgaged Property, subject only to the Permitted Encumbrances,
except that in
the case of a Mortgage Loan as to which the related Mortgaged
Property is made
up of more than one parcel of property and is not secured by a
single Mortgage,
each related Mortgage (and therefore the related Title Policy) may
be in an
amount less than the original principal amount of the Mortgage
Loan, but is not
less than the allocated amount of subject parcel constituting a
portion of the
related Mortgaged Property. Such Title Policy (or, if it has yet to
be issued,
the coverage to be provided thereby) is in full force and effect,
all premiums
thereon have been paid, no material claims have been made
thereunder and no
claims have been paid thereunder. No holder of the related Mortgage
has done, by
act or omission, anything that would materially impair the coverage
under such
Title Policy. Immediately following the transfer and assignment of
the related
Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued,
the coverage to be provided thereby) inures to the benefit of the
Trustee as
sole insured (except with respect to the rights of the holder of
any Non-Trust
Loan that is part of a related Loan Combination to which any such
Mortgage Loan
belongs) without the consent of or notice to the insurer. Such
Title Policy
contains no material exclusion for whether, or it affirmatively
insures (unless
the related Mortgaged Property is located in a jurisdiction where
such
affirmative insurance is not available) that, (a) the related
Mortgaged Property
has access to a public road, and (b) the area shown on the survey,
if any,
reviewed or prepared in connection with the origination of the
related Mortgage
Loan is the same as the property legally described in the related
Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan
have been
fully disbursed (except in those cases where the full amount of the
Mortgage
Loan has been disbursed but a portion thereof is being held in
escrow or reserve
accounts documented as part of the Mortgage Loan documents and the
rights to
which are transferred to the Trustee, pending the satisfaction of
certain
conditions relating to leasing, repairs or other matters with
respect to the
related Mortgaged Property), and there is no obligation for future
advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents
for each
Mortgage Loan, together with applicable state law, contain
customary and,
subject to the limitations and exceptions set forth in
representation 13 below,
enforceable provisions such as to render the rights and remedies of
the holder
thereof adequate for the practical realization against the related
Mortgaged
Property of the principal benefits of the security intended to be
provided
thereby, including, without limitation, judicial or non-judicial
foreclosure or
similar proceedings (as
applicable for the jurisdiction where the related Mortgaged
Property is
located). None of the Mortgage Loan documents contains any
provision that
expressly excuses the related Mortgagor from obtaining and
maintaining insurance
coverage for acts of terrorism provided that such insurance is
generally
available at commercially reasonable rates.
11. Trustee under Deed of Trust. If the Mortgage for
any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law
to serve as such, has either been properly designated and currently
so serves or
may be substituted in accordance with the Mortgage and applicable
law, and (b)
no fees or expenses are or will become payable to such trustee by
the Seller,
the Purchaser or any transferee thereof except in connection with a
trustee's
sale after default by the related Mortgagor or in connection with
any full or
partial release of the related Mortgaged Property or related
security for such
Mortgage Loan.
12. Environmental Conditions. Except in the case of
the Mortgaged
Properties identified on Annex B hereto (as to which properties the
only
environmental investigation conducted in connection with the
origination of the
related Mortgage Loan related to asbestos-containing materials and
lead-based
paint), (a) an environmental site assessment meeting ASTM standards
and covering
all environmental hazards typically assessed for similar properties
including
use, type and tenants of the related Mortgaged Property, a
transaction screen
meeting ASTM standards or an update of a previously conducted
environmental site
assessment (which update may have been performed pursuant to a
database update),
was performed by an independent third-party environmental
consultant (licensed
to the extent required by applicable state law) with respect to
each Mortgaged
Property securing a Mortgage Loan in connection with the
origination of such
Mortgage Loan, (b) the report of each such assessment, update or
screen, if any
(an "Environmental Report"), is dated no earlier than (or,
alternatively, has
been updated within) twelve (12) months prior to the date hereof,
(c) a copy of
each such Environmental Report has been delivered to the Purchaser,
and (d)
either: (i) no such Environmental Report, if any, reveals that as
of the date of
the report there is a material violation of applicable
environmental laws with
respect to any known circumstances or conditions relating to the
related
Mortgaged Property; or (ii) if any such Environmental Report does
reveal any
such circumstances or conditions with respect to the related
Mortgaged Property
and the same have not been subsequently remediated in all material
respects,
then one or more of the following are true--(A) one or more parties
not related
to the related Mortgagor and collectively having financial
resources reasonably
estimated to be adequate to cure the violation was identified as
the responsible
party or parties for such conditions or circumstances, and such
conditions or
circumstances do not materially impair the Value of the related
Mortgaged
Property, (B) the related Mortgagor was required to provide
additional security
reasonably estimated to be adequate to cure the violations and/or
to obtain and,
for the period contemplated by the related Mortgage Loan documents,
maintain an
operations and maintenance plan, (C) the related Mortgagor, or
other responsible
party, provided a "no further action" letter or other evidence that
would be
acceptable to a reasonably prudent commercial mortgage lender, that
applicable
federal, state or local governmental authorities had no current
intention of
taking any action, and are not requiring any action, in respect of
such
conditions or circumstances, (D) such conditions or circumstances
were
investigated further and based upon such additional investigation,
a qualified
environmental consultant recommended no further investigation or
remediation,
(E) the expenditure of funds reasonably estimated to be necessary
to effect such
remediation is not
greater than 2% of the outstanding principal balance of the related
Mortgage
Loan, (F) there exists an escrow of funds reasonably estimated to
be sufficient
for purposes of effecting such remediation, (G) the related
Mortgaged Property
is insured under a policy of insurance, subject to certain per
occurrence and
aggregate limits and a deductible, against certain losses arising
from such
circumstances and conditions, (H) a responsible party provided a
guaranty or
indemnity to the related Mortgagor to cover the costs of any
required
investigation, testing, monitoring or remediation and, as of the
date of
origination of the related Mortgage Loan, such responsible party
had financial
resources reasonably estimated to be adequate to cure the subject
violation in
all material respects or (I) the related Mortgagor or one of its
affiliates is
currently taking, or is required to take, such actions (which may
be
implementation of an operations and maintenance plan), if any, with
respect to
such conditions or circumstances as have been recommended by the
Environmental
Report or required by the applicable governmental authority. To the
Seller's
actual knowledge and without inquiry beyond the related
Environmental Report,
there are no significant or material circumstances or conditions
with respect to
such Mortgaged Property not revealed in any such Environmental
Report, where
obtained, or in any Mortgagor questionnaire delivered to the Seller
in
connection with the issue of any related environmental insurance
policy, if
applicable, that would require investigation or remediation by the
related
Mortgagor under, or otherwise be a material violation of, any
applicable
environmental law. The Mortgage Loan documents for each Mortgage
Loan require
the related Mortgagor to comply in all material respects with all
applicable
federal, state and local environmental laws and regulations. Each
of the
Mortgage Loans identified on Annex C hereto is covered by a secured
creditor
environmental insurance policy and each such policy is
noncancellable during its
term, is in the amount at least equal to 125% of the lesser of (a)
the amount
estimated in such Environmental Report as sufficient to pay the
costs of such
remediation or (b) the principal balance of the Mortgage Loan, has
a term ending
no sooner than a date which is the maturity date of the Mortgage
Loan to which
it relates and either does not provide for a deductible or the
deductible amount
is held in escrow and all premiums have been paid in full. Each
Mortgagor
represents and warrants in the related Mortgage Loan documents that
except as
set forth in certain environmental reports and to its knowledge it
has not used,
caused or permitted to exist and will not use, cause or permit to
exist on the
related Mortgaged Property any hazardous materials in any manner
which violates
federal, state or local laws, ordinances, regulations, orders,
directives or
policies governing the use, storage, treatment, transportation,
manufacture,
refinement, handling, production or disposal of hazardous
materials. The related
Mortgagor (or affiliate thereof) has agreed to indemnify, defend
and hold the
Seller and its successors and assigns harmless from and against any
and all
losses, liabilities, damages, injuries, penalties, fines,
out-of-pocket expenses
and claims of any kind whatsoever (including attorneys' fees and
costs) paid,
incurred or suffered by or asserted against, any such party
resulting from a
breach of environmental representations, warranties or covenants
given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note,
Mortgage and other
agreement evidencing or securing such Mortgage Loan that was
executed by or on
behalf of the related Mortgagor with respect to each Mortgage Loan
is the legal,
valid and binding obligation of the maker thereof (subject to any
non-recourse
provisions contained in any of the foregoing agreements and any
applicable state
anti-deficiency or one form of action law or market value limit
deficiency
legislation), enforceable in accordance with its terms, except as
such
enforcement may be limited by (i) bankruptcy, insolvency,
reorganization,
receivership, fraudulent transfer and conveyance or other similar
laws affecting
the enforcement of creditors' rights generally, (ii) general
principles of
equity (regardless of whether such enforcement is considered in a
proceeding in
equity or at law) and (iii) public policy considerations underlying
applicable
securities laws, to the extent that such public policy
considerations limit the
enforceability of provisions that purport to provide
indemnification from
liabilities under applicable securities laws, and except that
certain provisions
in such loan documents may be further limited or rendered
unenforceable by
applicable law, but (subject to the limitations set forth in the
foregoing
clauses (i), (ii), and (iii)) such limitations or unenforceability
will not
render such loan documents invalid as a whole or substantially
interfere with
the mortgagee's realization of the principal benefits and/or
security provided
thereby. There is no valid defense, counterclaim or right of offset
or
rescission available to the related Mortgagor with respect to such
Mortgage
Note, Mortgage or other agreements that would deny the mortgagee
the principal
benefits intended to be provided thereby, except in each case, with
respect to
the enforceability of any provisions requiring the payment of
default interest,
late fees, additional interest, prepayment premiums or yield
maintenance
charges.
14. Insurance. Except in certain cases where tenants,
having a net
worth of at least $50,000,000 or an investment grade credit rating
(and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and
obligated to
maintain the insurance described in this paragraph, are allowed to
self-insure
the related Mortgaged Properties, all improvements upon each
Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended
perils insurance
(or the equivalent) policy, in an amount at least equal to the
lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the
full
insurable replacement cost of the improvements located on the
related Mortgaged
Property, and if applicable, the related hazard insurance policy
contains
appropriate endorsements to avoid the application of co-insurance
and does not
permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property
is also covered by comprehensive general liability insurance in
amounts
customarily required by prudent commercial mortgage lenders for
properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is
the subject
of a business interruption or rent loss insurance policy providing
coverage for
at least twelve (12) months (or a specified dollar amount which is
reasonably
estimated to cover no less than twelve (12) months of rental
income), unless
such Mortgaged Property constitutes a manufactured housing
community. If any
material portion of the improvements on a Mortgaged Property
securing any
Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an
area identified in the Federal Register by the Flood Emergency
Management Agency
as a special flood hazard area (Zone A or Zone V), and flood
insurance was
available, a flood insurance policy is in effect with a generally
acceptable
insurance carrier, in an amount representing coverage not less than
the least
of: (1) the minimum amount required, under the terms of coverage,
to compensate
for any damage or loss on a replacement basis, (2) the outstanding
principal
balance of such Mortgage Loan, and (3) the maximum amount of
insurance available
under the applicable federal flood insurance program. Each
Mortgaged Property
(other than a manufactured housing community) located in California
or in
seismic zones 3 and 4 is covered by seismic insurance to the extent
such
Mortgaged Property has a probable maximum loss of greater than
twenty percent
(20%) of the replacement value of the related improvements,
calculated using
methodology acceptable to a reasonably prudent commercial mortgage
lender with
respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or
within 25
miles of the coast of North Carolina, South Carolina, Georgia,
Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance
in an amount
at least equal to the lesser of (i) the outstanding principal
balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement
cost of the
improvements located on such Mortgaged Property (less physical
depreciation).
All such hazard and flood insurance policies contain a standard
mortgagee clause
for the benefit of the holder of the related Mortgage, its
successors and
assigns, as mortgagee, and are not terminable (nor may the amount
of coverage
provided thereunder be reduced) without at least 10 days' prior
written notice
to the mortgagee; and no such notice has been received, including
any notice of
nonpayment of premiums, that has not been cured. Additionally, for
any Mortgage
Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the
insurer for all of the required coverages set forth herein has a
claims paying
ability or financial strength rating from S&P or Moody's of not
less than
A-minus (or the equivalent), or from A.M. Best Company of not less
than
"A-minus: V" (or the equivalent) and, if rated by Fitch, of not
less than "A-"
from Fitch (or the equivalent). With respect to each Mortgage Loan,
except as
set forth in the first sentence of this representation 14, the
related Mortgage
Loan documents require that the related Mortgagor or a tenant of
such Mortgagor
maintain insurance as described above or permit the related
mortgagee to require
insurance as described above. Except under circumstances that would
be
reasonably acceptable to a prudent commercial mortgage lender or
that would not
otherwise materially and adversely affect the security intended to
be provided
by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan
provide that proceeds paid under any such casualty insurance policy
will (or, at
the lender's option, will) be applied either to the repair or
restoration of all
or part of the related Mortgaged Property or to the payment of
amounts due under
such Mortgage Loan; provided that the related Mortgage Loan
documents may
entitle the related Mortgagor to any portion of such proceeds
remaining after
the repair or restoration of the related Mortgaged Property or
payment of
amounts due under the Mortgage Loan; and provided, further, that,
if the related
Mortgagor holds a leasehold interest in the related Mortgaged
Property, the
application of such proceeds will be subject to the terms of the
related Ground
Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance
policy that does not contain an express exclusion for (or,
alternatively, is
covered by a separate policy that insures against property damage
resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent
property taxes
or assessments or other outstanding charges affecting any Mortgaged
Property
securing a Mortgage Loan that are a lien of priority equal to or
higher than the
lien of the related Mortgage and that have not been paid or are no
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