Exhibit 99.4
GECC Mortgage Loan Purchase Agreement
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(GECC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
November 1, 2007, between General Electric Capital Corporation (the
"Seller"),
and Morgan Stanley Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to
purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage
Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a
trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the
"Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the
Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Wells
Fargo Bank,
National Association, as Wells Fargo Master Servicer, NCB, FSB, as
NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer,
National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank
National
Association, as Trustee and Custodian, Wells Fargo Bank, National
Association,
as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for
the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans")
to be purchased by the Purchaser, the Trust will issue to the
Depositor
pass-through certificates to be known as Morgan Stanley Capital I
Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16
(the
"Certificates"). The Certificates will be issued pursuant to the
Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Pooling and Servicing
Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA
Certificates
(the "Public Certificates") will be sold by the Purchaser to Morgan
Stanley &
Co. Incorporated, Greenwich Capital Markets, Inc., Merrill Lynch,
Pierce, Fenner
& Smith Incorporated (except with respect to the Class A-4
Certificates) and RBC
Capital Markets Corporation (collectively, the "Underwriters"),
pursuant to an
Underwriting Agreement, between the Purchaser and the Underwriters,
dated
November 15, 2007 (the "Underwriting Agreement"), and the Class
X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the
"Private
Certificates") will be sold by the Purchaser to Morgan Stanley
& Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant
to a
Certificate Purchase Agreement, between the Purchaser and the
Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The
Underwriters
will offer the Public Certificates for sale publicly pursuant to a
Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement
dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial
Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I,
Class R-II
and Class R-III Certificates) for sale in transactions exempt from
the
registration requirements of the Securities Act of 1933 pursuant to
a Private
Placement Memorandum, dated as of November 15, 2007 (the
"Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, on a servicing released basis, the
Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off
Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in
the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will
have an
aggregate principal balance as of the close of business on the
Cut-Off Date,
after giving effect to any payments due on or before such date,
whether or not
received, of $728,005,936. The sale of the Mortgage Loans shall
take place on
November 29, 2007 or such other date as shall be mutually
acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid
by the
Purchaser for the Mortgage Loans shall equal the amount set forth
as such
purchase price on the Bill of Sale. The purchase price shall be
paid to the
Seller by wire transfer in immediately available funds on the
Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right,
title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to
the extent set forth in Section 14), and the Trustee shall succeed
to such
right, title and interest in and to the Mortgage Loans and the
Purchaser's
rights under this Agreement (to the extent set forth in Section
14).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to receipt of the consideration referred to in
Section 1
hereof and the satisfaction of the conditions specified in Sections
6 and 7
hereof, the Seller does hereby transfer, assign, set over and
otherwise convey
to the Purchaser, without recourse, all the right, title and
interest of the
Seller, with the understanding that a Servicing Rights Purchase
Agreement, dated
as of November 29, 2007, will be executed by the Seller and the
applicable
Master Servicer, in and to the Mortgage Loans identified on the
Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it
may be
amended from time to time on or prior to the Closing Date, shall
conform to the
requirements of this Agreement and the Pooling and Servicing
Agreement. In
connection with such transfer and assignment, the Seller shall
deliver to the
Custodian on behalf of the Trustee, on behalf of the Purchaser, on
or prior to
the Closing Date, the Mortgage Note (as described in clause (a)
below) for each
Mortgage Loan and on or prior to the fifth Business Day after the
Closing Date,
five limited powers of attorney substantially in the form attached
hereto as
Exhibit 5 in favor of the Trustee, the applicable Master Servicer
and the
applicable Special Servicer to empower the Trustee, the applicable
Master
Servicer and, in the event of the failure or incapacity of the
Trustee and the
applicable Master Servicer, the applicable Special Servicer, to
submit for
recording, at the expense of the Seller, any mortgage loan
documents required to
be recorded as described in the Pooling and Servicing Agreement and
any
intervening assignments with evidence of recording thereon that are
required to
be included in the Mortgage Files (so long as original counterparts
have
previously been delivered to the Trustee). The Seller agrees to
reasonably
cooperate with the Trustee, the applicable Master Servicer and the
applicable
Special Servicer in connection with any additional powers of
attorney or
revisions thereto that are requested by such parties for purposes
of such
recordation. The parties hereto agree that no such power of
attorney shall be
used with respect to any Mortgage Loan by or under authorization by
any party
hereto except to the extent that the absence of a document
described in the
second preceding sentence with respect to such Mortgage Loan
remains unremedied
as of the earlier of (i) the date that is 180 days following the
delivery of
notice of such absence to the Seller, but in no event earlier than
18 months
from the Closing Date, and (ii) the date (if any) on which such
Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall
submit such
documents for recording, at the Seller's expense, after the periods
set forth
above; provided, however, the Trustee shall not submit such
assignments for
recording if the Seller produces evidence that it has sent any such
assignment
for recording and certifies that the Seller is awaiting its return
from the
applicable recording office. In addition, not later than the 30th
day following
the Closing Date, the Seller shall deliver to the Custodian on
behalf of the
Trustee each of the remaining documents or instruments specified
below (with
such exceptions and additional time periods as are permitted by
this Section)
with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller
acknowledges that the term "without recourse" does not modify the
duties of the
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the
Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The
Mortgage
Files shall be released from escrow upon closing of the sale of the
Mortgage
Loans and payments of the purchase price therefor as contemplated
hereby. The
Mortgage File for each Mortgage Loan shall contain the following
documents:
(a) The original Mortgage Note bearing all intervening
endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank
National
Association, as Trustee for Morgan Stanley Capital I Inc.,
Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse,
representation or
warranty" or if the original Mortgage Note is not included therein,
then a lost
note affidavit and indemnity, with a copy of the Mortgage Note
attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a power of attorney, a
certified true
copy of the power of attorney certified by the public recorder's
office, with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed), or certified by a title
insurance
company or escrow company to be a true copy thereof; provided that
if such
original Mortgage cannot be delivered with evidence of recording
thereon on or
prior to the 90th day following the Closing Date because of a delay
caused by
the public recording office where such original Mortgage has been
delivered for
recordation or because such original Mortgage has been lost, the
Seller shall
deliver or cause to be delivered to the Trustee a true and correct
copy of such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate (as defined below) of
the Seller
stating that such original Mortgage has been sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original Mortgage
that has been lost after recordation, a certification by the
appropriate county
recording office where such Mortgage is recorded that such copy is
a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon (if applicable) or if any such
original
modification, consolidation or extension agreement has been
delivered to the
appropriate recording office for recordation and either has not yet
been
returned on or prior to the 90th day following the Closing Date
with evidence of
recordation thereon or has been lost after recordation, a true copy
of such
modification, consolidation or extension certified by the Seller
together with
(i) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the Seller stating that such original modification,
consolidation
or extension agreement has been dispatched or sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original
modification, consolidation or extension agreement that has been
lost after
recordation, a certification by the appropriate county recording
office where
such document is recorded that such copy is a true and complete
copy of the
original recorded modification, consolidation or extension
agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan,
in
form and substance acceptable for recording (except for recording
information
not yet available if the instrument being recorded has not been
returned from
the applicable recording office), signed by the holder of record in
blank or in
favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if
any,
with evidence of recording thereon or, if such original assignments
of Mortgage
have been delivered to the appropriate recorder's office for
recordation,
certified true copies of such assignments of Mortgage certified by
the Seller,
or in the case of an original blanket intervening assignment of
Mortgage
retained by the Seller, a copy thereof certified by the Seller or,
if any
original intervening assignment of Mortgage has not yet been
returned on or
prior to the 90th day following the Closing Date from the
applicable recording
office or has been lost, a true and correct copy thereof, together
with (i) in
the case of a delay caused by the public recording office, an
Officer's
Certificate of the Seller stating that such original intervening
assignment of
Mortgage has been sent to the appropriate public recording official
for
recordation or (ii) in the case of an original intervening
assignment of
Mortgage that has been lost after recordation, a certification by
the
appropriate county recording office where such assignment is
recorded that such
copy is a true and complete copy of the original recorded
intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence
of recording
thereon or certified by a title insurance company or escrow company
to be a true
copy thereof; provided that if such Assignment of Leases has not
been returned
on or prior to the 90th day following the Closing Date because of a
delay caused
by the applicable public recording office where such Assignment of
Leases has
been delivered for recordation or because such original Assignment
of Leases has
been lost, the Seller shall deliver or cause to be delivered to the
Trustee a
true and correct copy of such Assignment of Leases submitted for
recording,
together with, (i) in the case of a delay caused by the public
recording office,
an Officer's Certificate (as defined below) of the Seller stating
that such
Assignment of Leases has been sent to the appropriate public
recording official
for recordation or (ii) in the case of an original Assignment of
Leases that has
been lost after recordation, a certification by the appropriate
county recording
office where such Assignment of Leases is recorded that such copy
is a true and
complete copy of the original recorded Assignment of Leases, in
each case
together with an original assignment of such Assignment of Leases,
in recordable
form (except for recording information not yet available if the
instrument being
recorded has not been returned from the applicable recording
office), signed by
the holder of record in favor of "LaSalle Bank National
Association, as Trustee
for Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected
in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any,
constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder,
actual
"marked-up" title commitment, pro forma policy, or an agreement to
provide any
of the foregoing pursuant to binding escrow instructions executed
by the title
company or its authorized agent with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a copy of any of the
foregoing
certified by the title company with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a preliminary title
report with
the original Title Insurance Policy to follow within 180 days of
the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and
(B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements
to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage
Loan where the Mortgagor is the lessee under such ground lease and
there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other
than letters of
credit representing tenant security deposits which have been
collaterally
assigned to the lender), which shall be assigned and delivered to
the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf
of the Trust
with a copy to be held by the applicable Primary Servicer (or
Master Servicer),
and applied, drawn, reduced or released in accordance with
documents evidencing
or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement
and the Primary Servicing Agreement or (B) the original of each
letter of
credit, if any, constituting additional collateral for such
Mortgage Loan (other
than letters of credit representing tenant security deposits which
have been
collaterally assigned to the lender), which shall be held by the
applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee,
with a copy to
be held by the Custodian on behalf of the Trustee, and applied,
drawn, reduced
or released in accordance with documents evidencing or securing the
applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement (it being understood that the Seller has agreed (a) that
the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or
before the
Closing Date, the bank issuing the letter of credit that the letter
of credit
and the proceeds thereof belong to the Trust, and to use reasonable
efforts to
obtain within 30 days (but in any event to obtain within 90 days)
following the
Closing Date, an acknowledgement thereof by the bank (with a copy
of such
acknowledgement to be sent to the Custodian on behalf of the
Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any
liabilities,
charges, costs, fees or other expenses accruing from the failure of
the Seller
to assign the letter of credit hereunder). In the case of clause
(B) above, any
letter of credit held by the applicable Primary Servicer (or Master
Servicer)
shall be held in its capacity as agent of the Trust, and if the
applicable
Primary Servicer (or Master Servicer) sells its rights to service
the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer)
has agreed
to assign the applicable letter of credit to the Trust or at the
direction of
the applicable Special Servicer to such party as such Special
Servicer may
instruct, in each case, at the expense of the applicable Primary
Servicer (or
Master Servicer). The applicable Primary Servicer (or Master
Servicer) has
agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for
all
hotels and for such other Mortgaged Properties securing Mortgage
Loans with a
Cut-Off Date principal balance equal to or greater than
$20,000,000;
(o) The original of any Environmental Insurance Policy or, if
the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor
of the lender;
(q) With respect to hospitality properties, a copy of any
franchise
agreement, franchise comfort letter and applicable assignment or
transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one
or
more of the Chairman of the Board, any Vice Chairman, the
President, any Senior
Vice President, any Vice President, any Assistant Vice President,
any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and
assignment of Assignment of Leases referred to in clauses (d), (e)
and (f) may
be in the form of a single instrument assigning the Mortgage and
the Assignment
of Leases to the extent permitted by applicable law. To avoid the
unnecessary
expense and administrative inconvenience associated with the
execution and
recording or filing of multiple assignments of mortgages,
assignments of leases
(to the extent separate from the mortgages) and assignments of UCC
financing
statements, the Seller shall execute, in accordance with the third
succeeding
paragraph, the assignments of mortgages, the assignments of leases
(to the
extent separate from the mortgages) and the assignments of UCC
financing
statements relating to the Mortgage Loans naming the Trustee on
behalf of the
Certificateholders as assignee. Notwithstanding the fact that such
assignments
of mortgages, assignments of leases (to the extent separate from
the assignments
of mortgages) and assignments of UCC financing statements shall
name the Trustee
on behalf of the Certificateholders as the assignee, the parties
hereto
acknowledge and agree that the Mortgage Loans shall for all
purposes be deemed
to have been transferred from the Seller to the Purchaser and from
the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, any of the documents and/or instruments referred to
in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because
of a delay
caused by the public recording office where such document or
instrument has been
delivered for recordation within such 90-day period, but the Seller
delivers a
photocopy thereof (to the extent available, certified by the
appropriate county
recorder's office to be a true and complete copy of the original
thereof
submitted for recording or, if such certification is not available,
together
with an Officer's Certificate of the Seller stating that such
document has been
sent to the appropriate public recording official for recordation),
to the
Custodian on behalf of the Trustee within such 90-day period, the
Seller shall
then deliver within 180 days after the Closing Date the recorded
document (or
within such longer period after the Closing Date as the Custodian
on behalf of
the Trustee may consent to, which consent shall not be withheld so
long as the
Seller is, as certified in writing to the Trustee no less often
than monthly, in
good faith attempting to obtain from the appropriate county
recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall
be
entitled to all scheduled payments of principal due thereon after
the Cut-Off
Date, all other payments of principal collected after the Cut-Off
Date (other
than scheduled payments of principal due on or before the Cut-Off
Date), and all
payments of interest on the Mortgage Loans allocable to the period
commencing on
the Cut-Off Date. All scheduled payments of principal and interest
due on or
before the Cut-Off Date and collected after the Cut-Off Date shall
belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver
and the Purchaser, the Custodian on behalf of the Trustee or the
agents of
either may submit or cause to be submitted for recordation at the
expense of the
Seller, in the appropriate public office for real property records,
each
assignment referred to in clauses (d) and (f)(ii) above (with
recording
information in blank if such information is not yet available).
Within 15 days
following the Closing Date, the Seller shall deliver and the
Purchaser, the
Custodian on behalf of the Trustee or the agents of either may
submit or cause
to be submitted for filing, at the expense of the Seller, in the
appropriate
public office for Uniform Commercial Code financing statements, the
assignment
referred to in clause (i) above. If any such document or instrument
is lost or
returned unrecorded or unfiled, as the case may be, because of a
defect therein,
the Seller shall prepare a substitute therefor or cure such defect,
and the
Seller shall, at its own expense (except in the case of a document
or instrument
that is lost by the Trustee), record or file, as the case may be,
and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise
agreement,
the Seller shall provide a notice on or prior to the date that is
thirty (30)
days after the Closing Date to the franchisor of the transfer of
such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement,
and inform
the franchisor that any notices to the Mortgagor's lender pursuant
to such
franchise agreement should thereafter be forwarded to the
applicable Master
Servicer and provide a franchise comfort letter from the franchisor
on or prior
to the date that is thirty (30) days after the Closing Date;
provided, however,
that if a franchisor is not obligated to issue a franchise comfort
letter under
the related franchise agreement, the Seller shall make reasonable
efforts to
obtain such franchise comfort letter from the franchisor on or
prior to the date
that is thirty (30) days after the Closing Date. As to each
Mortgage Loan
secured by a Mortgaged Property with respect to which a letter of
credit is in
place, the Seller shall notify, on or before the Closing Date, the
bank issuing
the letter of credit that such Mortgage Loan will be transferred to
the Trust
pursuant to the Pooling and Servicing Agreement and such letter of
credit and
the proceeds thereof belong to the Trust after such transfer, and
inform such
issuing bank that any notices to the Mortgagor's lender pursuant to
such letter
of credit should thereafter be forwarded to the Master Servicer,
and use
reasonable efforts to obtain within 30 days (but in any event to
obtain within
90 days) following the Closing Date, an acknowledgement of the
above notice by
the bank (with a copy of such acknowledgement to be sent to the
Custodian on
behalf of the Trustee) or a reissued letter of credit. After the
Closing Date,
with respect to any letter of credit that has not yet been assigned
to the
Trust, upon the written request of the applicable Master Servicer
or the
applicable Primary Servicer, the Seller will draw on such letter of
credit as
directed by the Master Servicer or such Primary Servicer in such
notice to the
extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents
or
its subcontractors that relate to the servicing of any Mortgage
Loans and that
are not required to be a part of the Mortgage File and are
reasonably necessary
for the ongoing administration and/or servicing of the applicable
Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at
the direction
of the applicable Master Servicer, on behalf of the Purchaser, on
or prior to
the 75th day after the Closing Date, in accordance with the Primary
Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be
(and
actually) delivered to the Seller pursuant to the applicable
Mortgage Loan
documents, copies of the following items: the Mortgage Note, any
Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity
agreement, any loan agreement, the insurance policies or
certificates, as
applicable, the property inspection reports, any financial
statements on the
property, any escrow analysis, the tax bills, the Appraisal, the
environmental
report, the engineering report, the asset summary, financial
information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreements and any Environmental Insurance Policies; provided,
however, the
Seller shall not be required to deliver any draft documents,
attorney-client
privileged communications, internal correspondence or credit
analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be
deemed a
delivery to the applicable Master Servicer and satisfy Seller's
obligations
under this sub-paragraph. Each of the foregoing items shall be
delivered by the
Seller in electronic form, to the extent such document is available
in such form
and such form is reasonably acceptable to the applicable Master
Servicer.
Upon
the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and
the other contents of the related Mortgage File shall be vested in
the Purchaser
and its assigns, and the ownership of all records and documents
with respect to
the related Mortgage Loan prepared by or that come into the
possession of the
Seller shall immediately vest in the Purchaser and its assigns, and
shall be
delivered promptly by the Seller to or on behalf of either the
Custodian (on
behalf of the Trustee) or the applicable Master Servicer as set
forth herein,
subject to the requirements of the Primary Servicing Agreement. The
Seller's and
Purchaser's records shall reflect the transfer of each Mortgage
Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance
of the Mortgage Loans and related property to the Purchaser by the
Seller as
provided in this Section 2 be, and be construed as, an absolute
sale of the
Mortgage Loans and related property. It is, further, not the
intention of the
parties that such conveyance be deemed a pledge of the Mortgage
Loans and
related property by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to
purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause (a)
above) or lost note affidavit and indemnity required to be
delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to
this Section
2 on or before the Closing Date is not so delivered, or is not
properly executed
or is defective on its face, and the Purchaser's acceptance of the
related
Mortgage Loan on the Closing Date shall in no way constitute a
waiver of such
omission or defect or of the Purchaser's or its successors' and
assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall (i) deliver to the Purchaser on or before the
Closing Date a
diskette acceptable to the Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by the Purchaser,
(ii) deliver to
the Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at the Purchaser's headquarters in New York, and (iii)
otherwise
cooperate fully with the Purchaser in its examination of the credit
files,
underwriting documentation and Mortgage Files for the Mortgage
Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser
has
conducted or has failed to conduct any partial or complete
examination of the
credit files, underwriting documentation or Mortgage Files for the
Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to
cause the
Seller to cure any Material Document Defect or Material Breach
(each as defined
below), or to repurchase or replace the defective Mortgage Loans
pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall, upon
reasonable
request by any of the Purchaser, each Underwriter, the Initial
Purchaser, the
Trustee, the Custodian, the applicable Special Servicer and each
Rating Agency,
make available to them all books, records and files pertaining to
the Mortgage
Loans, the Seller's underwriting procedures and the Seller's
ability to perform
or observe all of the terms, covenants and conditions of this
Agreement. On or
prior to the Closing Date, upon reasonable request the Seller shall
provide the
Purchaser with all material information and respond to questions
with respect to
the Seller's ability to consummate the transactions contemplated
hereby. Within
45 days after the Closing Date, the Seller shall provide the
applicable Master
Servicer or Primary Servicer, if applicable, with any additional
information
identified by the applicable Master Servicer or Primary Servicer,
if applicable,
as necessary to complete the CMSA Property File, to the extent that
such
information is available.
The Purchaser may exercise any of its rights hereunder through
one
or more designees or agents; provided the Purchaser has provided
the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the
Seller and the Mortgage Loans that has been delivered into the
Purchaser's
possession and that is not otherwise publicly available; provided,
however, that
such information shall not be kept confidential (and the right to
require
confidentiality under any confidentiality agreement is hereby
waived) to the
extent such information is required to be included in the
Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court
order to
disclose such information. If the Purchaser is required to disclose
in the
Memorandum or the Prospectus Supplement confidential information
regarding the
Seller as described in the preceding sentence, the Purchaser shall
provide to
the Seller a copy of the proposed form of such disclosure prior to
making such
disclosure and the Seller shall promptly, and in any event within
two Business
Days, notify the Purchaser of any inaccuracies therein, in which
case the
Purchaser shall modify such form in a manner that corrects such
inaccuracies. If
the Purchaser is required by law or court order to disclose
confidential
information regarding the Seller as described in the second
preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's
efforts to
obtain a protective order or other reasonable assurance that
confidential
treatment will be accorded such information and, if in the absence
of a
protective order or such assurance, the Purchaser is compelled as a
matter of
law to disclose such information, the Purchaser shall, prior to
making such
disclosure, advise and consult with the Seller and its counsel as
to such
disclosure and the nature and wording of such disclosure and the
Purchaser shall
use reasonable efforts to obtain confidential treatment
therefor.
Notwithstanding the foregoing, if reasonably advised by counsel
that the
Purchaser is required by a regulatory agency or court order to make
such
disclosure immediately, then the Purchaser shall be permitted to
make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller
hereby makes for the benefit of the Purchaser and its assigns with
respect to
each Mortgage Loan as of the date hereof (or as of such other date
specifically
set forth in the particular representation and warranty) each of
the
representations and warranties set forth on Exhibit 2 hereto,
except as
otherwise set forth on Schedule A attached hereto, and hereby
further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of Delaware. The Seller
has
the
requisite power and authority and legal right to own the
Mortgage
Loans and
to transfer and convey the Mortgage Loans to the Purchaser and
has the
requisite power and authority to execute and deliver, engage in
the
transactions contemplated by, and perform and observe the terms
and
conditions
of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Seller, and assuming the due authorization,
execution
and
delivery hereof by the Purchaser, this Agreement constitutes
the
valid,
legal and binding agreement of the Seller, enforceable in
accordance
with its terms, except as such enforcement may be limited by
(A) laws
relating to bankruptcy, insolvency, reorganization,
receivership
or
moratorium, (B) other laws relating to or affecting the rights
of
creditors
generally, (C) general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law) or
(D)
public policy
considerations underlying the securities laws, to the extent
that such
public policy considerations limit the enforceability of the
provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or
the
consummation by the Seller of any transaction contemplated hereby,
other
than (1)
such qualifications as may be required under state securities
or
blue sky
laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary
in
connection
with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such
consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4)
where the
lack of
such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse
effect on
the performance by the
Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser,
nor the
execution, delivery or performance of this Agreement by the
Seller,
conflicts or will conflict with, results or will result in a
breach of,
or constitutes or will constitute a default under (A) any term
or
provision of the Seller's certificate of incorporation or by-laws,
(B)
any term
or provision of any material agreement, contract, instrument or
indenture
to which the Seller is a party or by which it or any of its
assets is
bound or results in the creation or imposition of any lien,
charge or
encumbrance upon any of its property pursuant to the terms of
any such
indenture, mortgage, contract or other instrument, other than
pursuant
to this Agreement, or (C) after giving effect to the consents
or
taking of
the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any
court or
governmental authority having jurisdiction over the Seller or its
assets,
except
where in any of the instances contemplated by clauses (B) or
(C)
above, any
conflict, breach or default, or creation or imposition of any
lien,
charge or encumbrance, will not have a material adverse effect
on
the
consummation of the transactions contemplated hereby by the Seller
or
materially
and adversely affect its ability to perform its obligations and
duties
hereunder or result in any material adverse change in the
business,
operations, financial condition, properties or assets of the
Seller, or in
any
material impairment of the right or ability of the Seller to carry
on
its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations
of, the
Seller pending or, to the Seller's knowledge, threatened in
writing
against the Seller before any court, administrative agency or
other
tribunal, the outcome of which could reasonably be expected to
materially
and adversely affect the transfer of the Mortgage Loans to the
Purchaser
or the execution or delivery by, or enforceability against, the
Seller of
this Agreement or have an effect on the financial condition of
the Seller
that would materially and adversely affect the ability of the
Seller to
perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to
this
Agreement will effect a transfer by the Seller of all of its
right,
title and
interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information
(as
defined in
that certain indemnification agreement, dated as of November
15, 2007,
between the Seller, the Purchaser, the Underwriters and the
Initial
Purchaser (the "Indemnification Agreement")) contained in the
Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum
and the Prospectus Supplement as of the Time of Sale (as
defined in
the Indemnification Agreement) (i) does not contain any untrue
statement
of a material fact or omit to state a material fact necessary
to
make the
statements therein, in the light of the circumstances under
which
they were
made, not misleading and (ii) (other than the Memorandum)
complies
with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the
Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the
Seller
hereby covenants that the foregoing representations and warranties
and those set
forth on Exhibit 2 hereto will be true and correct in all material
respects on
and as of the Closing Date with the same effect as if made on the
Closing Date,
provided that any representations and warranties made as of a
specified date
shall be true and correct in all material respects as of such
specified date.
Each of the representations, warranties and covenants made by
the
Seller pursuant to this Section 4(a) shall survive the sale of the
Mortgage
Loans and shall continue in full force and effect notwithstanding
any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser
hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing,
and in good standing under the laws of the State of Delaware
with full
power and authority to carry on its business as presently
conducted
by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage
Loans, to execute and deliver this Agreement and to enter into
and
consummate all transactions contemplated by this Agreement. The
Purchaser
has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed
and
delivered
this Agreement. This Agreement, assuming due authorization,
execution
and delivery by the Seller, constitutes the valid and binding
obligation
of the Purchaser, enforceable against it in accordance with its
terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting
the
enforcement of creditors' rights generally and by general
principles
of equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(xi) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement,
or the
consummation by the Purchaser of any transaction contemplated
hereby that
has not
been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution,
delivery
and performance of this Agreement by the Purchaser will violate
the
Purchaser's certificate of incorporation or by-laws or constitute
a
default
(or an event that, with notice or lapse of time or both, would
constitute
a default) under, or result in a breach of, any material
agreement,
contract, instrument or indenture to which the Purchaser is a
party or
that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement
and
its
performance and compliance with the terms of this Agreement will
not
constitute
a violation of, any law, rule, writ, injunction, order or
decree of
any court, or order or regulation of any federal, state or
municipal
government agency having jurisdiction over the Purchaser or its
assets,
which violation could materially and adversely affect the
condition
(financial or otherwise) or the operation of the Purchaser or
its assets
or could materially and adversely affect its ability to perform
its
obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or
investigations
of, the
Purchaser pending or, to the Purchaser's knowledge, threatened
against
the Purchaser before any court, administrative agency or other
tribunal,
the outcome of which could reasonably be expected to adversely
affect the
transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this
Agreement
or have an
effect on the financial condition of the Purchaser that would
materially
and adversely affect the ability of the Purchaser to perform
its
obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker,
agent or
other person, other than the Seller, the Underwriters, the
Initial
Purchaser and their respective affiliates, that may be entitled
to
any
commission or compensation in connection with the sale of the
Mortgage
Loans or
consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the
Purchaser
hereby covenants that the foregoing representations and warranties
will be true
and correct in all material respects on and as of the Closing Date
with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser
pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and
Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for
the
benefit of the Trustee on behalf of the holders of the
Certificates, whether
directly or by way of the Purchaser's assignment of its rights
hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2
hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required
to be delivered to the Custodian on behalf of the Trustee pursuant
to Section 2
is not delivered as and when required (and including the expiration
of any grace
or cure period), is not properly executed or is defective on its
face, or if
there is a breach of any of the representations and warranties
required to be
made by the Seller regarding the characteristics of the Mortgage
Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto,
and in either
case such defect or breach, either (i) materially and adversely
affects the
interests of the holders of the Certificates in the related
Mortgage Loan, or
(ii) both (A) the document defect or breach materially and
adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially
Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document
defect described
in the preceding clause (i) or (ii), a "Material Document Defect"
and such a
breach described in the preceding clause (i) or (ii) a "Material
Breach"), the
party discovering such Material Document Defect or Material Breach
shall
promptly notify, in writing, the other party; provided that any
breach of the
representation and warranty contained in paragraph (38) of such
Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or
yield
maintenance charge is not deemed "customary" for commercial
mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii)
a
determination by the Internal Revenue Service that such provision
is not
customary. Promptly (but in any event within three Business Days)
upon becoming
aware of any such Material Document Defect or Material Breach, the
applicable
Master Servicer shall, and the applicable Special Servicer may,
request that the
Seller, not later than 90 days from the Seller's receipt of the
notice of such
Material Document Defect or Material Breach, cure such Material
Document Defect
or Material Breach, as the case may be, in all material respects;
provided,
however, that if such Material Document Defect or Material Breach,
as the case
may be, cannot be corrected or cured in all material respects
within such 90-day
period, and such Material Document Defect or Material Breach would
not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined
in the Code),
but the Seller is diligently attempting to effect such correction
or cure, as
certified by the Seller in an Officer's Certificate delivered to
the Trustee,
then the cure period will be extended for an additional 90 days
unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan
is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan
and a Servicing
Transfer Event has occurred as a result of a monetary default or as
described in
clause (ii) or clause (v) of the definition of "Servicing Transfer
Event" in the
Pooling and Servicing Agreement and (y) the Material Document
Defect was
identified in a certification delivered to the Seller by the
Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90
days prior
to the delivery of the notice of such Material Document Defect. The
parties
acknowledge that neither delivery of a certification or schedule of
exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing
Agreement or
otherwise nor possession of such certification or schedule by the
Seller shall,
in and of itself, constitute delivery of notice of any Material
Document Defect
or knowledge or awareness by the Seller of any Material Document
Defect listed
therein.
The Seller hereby covenants and agrees that, if any such
Material
Document Defect or Material Breach cannot be corrected or cured in
all material
aspects within the above cure periods, the Seller shall, on or
before the
termination of such cure periods, either (i) repurchase the
affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the
Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if
within the
two-year period commencing on the Closing Date, at its option
replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such
defect relates
with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or
Material Breach would cause the Mortgage Loan to be other than a
"qualified
mortgage" (as defined in the Code), then notwithstanding the
previous sentence,
such repurchase or substitution must occur within 90 days from the
earlier of
the date the Seller discovered or was notified of the breach or
defect. The
Seller agrees that any substitution shall be completed in
accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as
contemplated
above, (ii) such Mortgage Loan is cross-collateralized and
cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the
applicable document
defect or breach does not constitute a Material Document Defect or
Material
Breach, as the case may be, as to such other Mortgage Loans
(without regard to
this paragraph), then the applicable document defect or breach (as
the case may
be) shall be deemed to constitute a Material Document Defect or
Material Breach,
as the case may be, as to each such other Mortgage Loan for
purposes of the
above provisions, and the Seller shall be obligated to repurchase
or replace
each such other Mortgage Loan in accordance with the provisions
above, unless,
in the case of such breach or document defect, both of the
following conditions
would be satisfied if the Seller were to repurchase or replace only
those
Mortgage Loans as to which a Material Breach had occurred without
regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage
ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the
four calendar
quarters immediately preceding the repurchase or replacement
(determined as
provided in the definition of Debt Service Coverage Ratio in the
Pooling and
Servicing Agreement, except that net cash flow for such four
calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x)
the debt
service coverage ratio for all such Mortgage Loans (including the
Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to
the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value
Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not
greater than
the lesser of (x) the current loan-to-value ratio for all such
Mortgage Loans
(including the Affected Loan(s)) set forth under the heading
"Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The
determination
of the applicable Master Servicer as to whether either of the
conditions set
forth above has been satisfied shall be conclusive and binding in
the absence of
manifest error. The applicable Master Servicer will be entitled to
cause, or
direct the Seller to cause, to be delivered to the applicable
Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related
Mortgaged
Properties for purposes of determining whether the condition set
forth in clause
(2) above has been satisfied, in each case at the expense of the
Seller if the
scope and cost of the Appraisal is approved by the Seller (such
approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not
requiring the
repurchase of each such Cross-Collateralized Loan will not result
in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted
and/or
cross-collateralized with any other Mortgage Loan conveyed
hereunder, to the
extent that the Seller is required to repurchase or substitute for
such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above
while the
Trustee (as assignee of the Purchaser) continues to hold any other
Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller
and the
Purchaser hereby agree to modify, prior to such repurchase or
substitution, the
related Mortgage Loan documents in a manner such that such affected
Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans
held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller
shall have
furnished the Trustee, at the expense of the Seller, a
nondisqualification
opinion that such modification shall not cause an Adverse REMIC
Event; provided,
further, that if such nondisqualification opinion cannot be
furnished, the
Seller and the Purchaser agree that such repurchase or substitution
of only the
Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be
permitted and the Seller shall repurchase or substitute for the
Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other
cash
collateral or letters of credit securing the Cross-Collateralized
Loans shall be
allocated between such Mortgage Loans in accordance with the
Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in
full force and
effect, without any modification thereof. The Mortgagors set forth
on Schedule B
hereto are intended third-party beneficiaries of the provisions set
forth in
this paragraph and the preceding paragraph. The provisions of this
paragraph and
the preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any
of the following document defects shall be conclusively presumed
materially and
adversely to affect the interests of Certificateholders in a
Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage
File of the
original signed Mortgage Note, unless the Mortgage File contains a
signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii)
the absence
from the Mortgage File of the item called for by paragraph (b) of
the definition
of Mortgage File; or (iii) the absence from the Mortgage File of
the item called
for by paragraph (h) of the definition of Mortgage File. If any of
the foregoing
Material Document Defects is discovered by the Custodian (or the
Trustee if
there is no Custodian), the Trustee (or as set forth in Section
2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer)
will take the
steps described elsewhere in this Section, including the giving of
notices to
the Rating Agencies and the parties hereto and making demand upon
the Seller for
the cure of the Material Document Defect or repurchase or
replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material
Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect
a correction or cure of such Material Document Defect or Material
Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that
(x) the
period of time provided for the Seller to correct, repurchase or
cure has
expired and (y) the Mortgage Loan is then in default and is then a
Specially
Serviced Mortgage Loan, the applicable Special Servicer may,
subject to the
Servicing Standard, modify, work-out or foreclose, sell or
otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to
Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the
Pooling and
Servicing Agreement, while pursuing the repurchase claim. The
Seller
acknowledges and agrees that any modification of the Mortgage Loan
pursuant to
such a work-out shall not constitute a defense to any repurchase
claim nor shall
such modification or work-out change the Purchase Price due from
the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure
upon such
Mortgage Loan and sale of the REO Property, to a Person other than
the Seller
shall be without (i) recourse of any kind (either express or
implied) by such
Person against the Seller and (ii) representation or warranty of
any kind
(either express or implied) by the Seller to or for the benefit of
such Person.
The fact that a Material Document Defect or Material Breach is
not
discovered until after foreclosure (but in all instances prior to
the sale of
the related REO Property or Mortgage Loan) shall not prejudice any
claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property.
In such an
event, the applicable Master Servicer or the applicable Special
Servicer, as
applicable, shall be required to notify the Seller of the discovery
of the
Material Document Defect or Material Breach and the Seller shall be
required to
follow the procedures set forth in this Agreement to correct or
cure such
Material Document Defect or Material Breach or purchase the REO
Property at the
Purchase Price. If the Seller fails to correct or cure the Material
Document
Defect or Material Breach or purchase the REO Property, then the
provisions
above regarding notice of offers related to such REO Property and
the Seller's
right to purchase such REO Property shall apply. If a court of
competent
jurisdiction issues a final order that the Seller is or was
obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the
Seller
otherwise accepts liability, then, after the expiration of any
applicable appeal
period, but in no event later than the termination of the Trust
pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller
will be
obligated to pay to the Trust the difference between any
Liquidation Proceeds
received upon such liquidation (including those arising from any
sale to the
Seller) and the Purchase Price; provided that the prevailing party
in such
action shall be entitled to recover all costs, fees and expenses
(including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO
Property as described above, the applicable Special Servicer will
not receive a
Liquidation Fee in connection with such liquidation or sale or any
portion of
the Work-Out Fee that accrues after the Seller receives notice of a
Material
Document Defect or Material Breach until a final determination has
been made, as
set forth in the prior paragraph, as to whether the Seller is or
was obligated
to repurchase such related Mortgage Loan or REO Property. Upon
such
determination, the applicable Special Servicer will be entitled:
(i) with
respect to a determination that the Seller is or was obligated to
repurchase, to
collect a Liquidation Fee, if due in accordance with the definition
thereof,
based upon the full Purchase Price of the related Mortgage Loan or
REO property,
with such Liquidation Fee payable by the Seller or (ii) with
respect to a
determination that Seller is not or was not obligated to repurchase
(or the
Trust decides that it will no longer pursue a claim against the
Seller for
repurchase), (A) to collect a Liquidation Fee based upon the
Liquidation
Proceeds as received upon the actual sale or liquidation of such
Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out
Fee, based
on amounts that were collected for as long as the related Mortgage
Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be
paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to
cure
a Material Document Defect or a Material Breach or repurchase or
replace a
defective Mortgage Loan constitute the sole remedies of the
Purchaser or its
assignees with respect to a Material Document Defect or Material
Breach in
respect of an outstanding Mortgage Loan; provided, that this
limitation shall
not in any way limit the Purchaser's rights or remedies upon breach
of any other
representation or warranty or covenant by the Seller set forth in
this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach
of the representation and warranty set forth in paragraph 41 of
Exhibit 2
attached hereto because the underlying loan documents do not
provide for the
payment by the Mortgagor of reasonable costs and expenses
associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the
Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to
the extent an
amount is due and not paid by the related Mortgagor. The parties
hereto
acknowledge that the payment of such reasonable costs and expenses
shall be the
Seller's sole obligation with respect to the breaches discussed in
the previous
sentence. The Seller shall have no obligation to pay for any of the
foregoing
costs if the applicable Mortgagor has an obligation to pay for such
costs.
The Seller hereby agrees that it will pay for any expense
incurred
by the applicable Master Servicer or the applicable Special
Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant
to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage
Loan to be a
"qualified substitute mortgage loan" within the meaning of the
Treasury
Regulations promulgated under the Code. Upon a breach of the
representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if
such
Mortgage Loan is modified so that it becomes a "qualified
substitute mortgage
loan", such breach will be cured and the Seller will not be
obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable
Special Servicer on
its behalf) shall give written notice within three Business Days to
the Seller
of its discovery of any Material Document Defect or Material Breach
and prompt
written notice to the Seller in the event that any Mortgage Loan
becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and
Servicing
Agreement).
(d) If the
Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the
Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be
delivered to
the Seller all Mortgage Loan documents with respect to such
Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was
endorsed or
assigned to the Trustee shall be endorsed and assigned to the
Seller in the same
manner such that the Seller shall be vested with legal and
beneficial title to
such Mort
