EXHIBIT 10.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of August 1,
2007
(this "Agreement"), is entered into between KeyBank National
Association (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. as master servicer no. 1 (in such capacity, "Master
Servicer No.
1" and, also a "Master Servicer"), Wells Fargo Bank, National
Association as
master servicer no. 2 ("Master Servicer No. 2" and, also a "Master
Servicer"),
Midland Loan Services, Inc. as special servicer (in such capacity,
the "Special
Servicer") and LaSalle Bank National Association as trustee (in
such capacity,
the "Trustee") and custodian (in such capacity, the "Custodian").
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 August 17, 2007 (the "Underwriting Agreement"), with Merrill
Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") for itself and as
representative
of Countrywide Securities Corporation ("Countrywide Securities"),
KeyBanc
Capital Markets Inc. ("KBCM"), Banc of America Securities LLC
("Banc of America
Securities"), Bear, Stearns & Co. Inc. ("BSCI", Merrill Lynch,
Countrywide
Securities, KBCM, Banc of America Securities and BSCI,
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. The Purchaser has also entered
into a
Certificate Purchase Agreement, dated as of August 17, 2007 (the
"Certificate
Purchase Agreement"), with Merrill Lynch for itself and as
representative of
Countrywide Securities and KBCM (collectively, in such capacity,
the "Initial
Purchasers"), whereby the Purchaser will sell to the Initial
Purchasers all of
the remaining 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 $423,678,518 (the "KeyBank
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
KeyBank
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 (the "Cut-off Date
Pool
Balance") of $2,435,364,704 (subject to a variance of plus or minus
5%).
The purchase and sale of the Mortgage Loans shall take place on
August 28, 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)
95.75401224042600%
of the KeyBank Mortgage Loan Balance as of the Cut-off Date, plus
(ii)
$1,864,939, which amount represents the amount of interest accrued
on the
KeyBank Mortgage Loan Balance, as agreed to by the Seller and the
Purchaser.
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 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, 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.
(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 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
LaSalle
Bank National Association, as trustee for the registered
holders
of ML-CFC
Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, 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
LaSalle
Bank
National Association, as trustee for the registered holders of
ML-CFC
Commercial
Mortgage Trust 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8 (or, in the case of a Loan Combination,
in
favor of
LaSalle Bank National Association, as trustee for the
registered
holders of
ML-CFC Commercial Mortgage Trust 2007-8, Commercial Mortgage
Pass-Through Certificates, Series 2007-8, 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 LaSalle Bank National Association, as trustee
for
the
registered holders of ML-CFC Commercial Mortgage Trust 2007-8,
Commercial
Mortgage Pass-Through Certificates, Series 2007-8 (or, in the
case of a
Loan Combination, in favor of LaSalle Bank National
Association,
as trustee
for the registered holders of ML-CFC Commercial Mortgage Trust
2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8,
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 LaSalle Bank National Association, as
trustee
for the registered holders of ML-CFC Commercial Mortgage Trust
2007-8,
Commercial Mortgage Pass-Through Certificates, Series 2007-8,
as
assignee
(or, in the case of a Loan Combination, in favor of LaSalle
Bank
National
Association, as trustee for the registered holders of ML-CFC
Commercial
Mortgage Trust 2007-8, Commercial Mortgage Pass-Through
Certificates, Series 2007-8, and in its capacity as lead lender on
behalf
of the
holder(s) 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 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 Trustee 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 Intercreditor
Agreement.
The foregoing Mortgage File delivery requirement shall be subject
to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan,
promptly (and in
any event within 180 days following the later of the Closing Date
and the
delivery of each Mortgage, Assignment of Leases, recordable
document and UCC
Financing Statement to the Custodian) cause to be submitted for
recording or
filing, as the case may be, in the appropriate public office for
real property
records or UCC Financing Statements, each assignment of Mortgage,
assignment of
Assignment of Leases and any other recordable documents relating to
each such
Mortgage Loan in favor of the Trustee that is referred to in clause
(iv) of the
definition of "Mortgage File" and each UCC Financing Statement
assignment in
favor of the Trustee that is referred to in clause (viii) of the
definition of
"Mortgage File." Each such assignment and UCC Financing Statement
assignment
shall reflect that the recorded original should be returned by the
public
recording office to the Custodian following recording, and each
such assignment
and UCC Financing Statement assignment shall reflect that the file
copy thereof
should be returned to the Custodian following filing; provided,
that in those
instances where the public recording office retains the original
assignment of
Mortgage or assignment of Assignment of Leases, the
Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any
such document
or instrument is lost or returned unrecorded or unfiled, as the
case may be,
because of a defect therein, then the Seller shall prepare a
substitute therefor
or cure such defect or cause such to be done, as the case may be,
and the Seller
shall deliver such substitute or corrected document or instrument
to the
Custodian (or, if the Mortgage Loan is then no longer subject to
the Pooling and
Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of
all
such recording, filing and delivery contemplated in the preceding
paragraph,
including, without limitation, any costs and expenses that may be
incurred by
the Custodian in connection with any such recording, filing or
delivery
performed by the Custodian at the Seller's request and the fees of
the
Recording/Filing Agent.
(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 (which, for purposes of this
Agreement, shall
be KeyCorp Real Estate Capital Markets, Inc. with respect to all of
the Mortgage
Loans) 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 the applicable 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.
(a) The Seller hereby represents and warrants to and covenants
with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly
organized,
validly
existing and in good standing under the laws of the United
States
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 articles of association 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 articles of association, 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).
(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 dated August 17, 2007 (the
"Prospectus
Supplement"), which supplements the base prospectus dated May 10,
2007
(the
"Prospectus"), 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.
(c)
If the Seller discovers or 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 such discovery or 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 Trustee 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 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 (i) the delivery by the Seller to the Trustee,
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
and (ii) the
consent of the Controlling Class Representative (if one is then
acting), which
consent shall not be unreasonably withheld or delayed. 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, the Seller shall
provide, once
every ninety days, the officer's certificate to the Trustee
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 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.
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 Trustee
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 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.
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 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 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 articles of association, 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 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 Cadwalader,
Wickersham & Taft
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 the
applicable Master
Servicer pursuant to Section 2 of this Agreement;
(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
Ernst & Young LLP, in form satisfactory to the Purchaser and
relating to certain
information regarding the Mortgage Loans and Certificates as set
forth in the
Prospectus and Prospectus Supplement, respectively, shall have been
delivered;
and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of August
17, 2007,
among the Seller, Countrywide Commercial Real Estate Finance, Inc.,
Merrill
Lynch Mortgage Lending, Inc., the Purchaser, the Underwriters and
the Initial
Purchasers. 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 and/or collectively, 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 Purchasers 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 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) Each of: (i) the resolutions of the Seller's board of
directors
or a committee thereof authorizing the Seller's entering into the
transactions
contemplated by this Agreement, (ii) the articles of association
and bylaws of
the Seller, and (iii) a certificate of corporate existence of the
Seller issued
by the Office of the Comptroller of the Currencey not earlier than
thirty (30)
days prior to the Closing Date;
(e) 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 Custodian, the
Underwriters, the
Initial Purchasers 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
(f) 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. Grant of a Security Interest. 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. However, if, notwithstanding the
aforementioned
intent of the parties, the Mortgage Loans are held to be property
of the Seller,
then, (a) it is the express intent of the parties that such
conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall
also be
deemed to be a security agreement within the meaning of Article 9
of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in
Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the
Purchaser of a
security interest in all of the Seller's right, title and interest
in and to the
Mortgage Loans, and all amounts payable to the holder of the
Mortgage Loans in
accordance with the terms thereof, and all proceeds of the
conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities
or other
property, including without limitation, all amounts, other than
investment
earnings (other than investment earnings required by Section
3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest
Shortfalls), from
time to time held or invested in the applicable Master Servicer's
Collection
Account, the Distribution Account or, if established, the REO
Account whether in
the form of cash, instruments, securities or other property; (iii)
the
assignment to the Trustee of the interest of the Purchaser as
contemplated by
Section 1 of this Agreement shall be deemed to be an assignment of
any security
interest created hereunder; (iv) the possession by the Trustee or
any of its
agents, including, without limitation, the Custodian, of the
Mortgage Notes, and
such other items of property as constitute instruments, money,
negotiable
documents or chattel paper shall be deemed to be possession by the
secured party
for purposes of perfecting the security interest pursuant to
Section 9-313 of
the UCC of the applicable jurisdiction; and (v) notifications to
persons (other
than the Trustee) holding such property, and acknowledgments,
receipts or
confirmations from persons (other than the Trustee) holding such
property, shall
be deemed notifications to, or acknowledgments, receipts or
confirmations from,
financial intermediaries, bailees or agents (as applicable) of the
secured party
for the purpose of perfecting such security interest under
applicable law. The
Seller and the Purchaser shall, to the extent consistent with this
Agreement,
take such actions as may be necessary to ensure that, if this
Agreement were
deemed to create a security interest in the Mortgage Loans, such
security
interest would be deemed to be a perfected security interest of
first priority
under applicable law and will be maintained as such throughout the
term of this
Agreement and the Pooling and Servicing Agreement. The Seller does
hereby
consent to the filing by the Purchaser of financing statements
relating to the
transactions contemplated hereby without the signature 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, 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 (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 (in its role as Sponsor), 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 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 will terminate upon the Trustee's filing of a Form 15 with
respect to the
Trust 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
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 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) and also by facsimile transmission 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 the case of a notice sent by mail or
courier
service) or transmitted (in the case of a faxed notice), 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 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 Purchasers (also as intended third party beneficiaries
hereof) and their
permitted successors and assigns. This Agreement is enforceable by
the
Underwriters, the Initial Purchasers 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.
SECTION 19. Accountants' Letters. The parties hereto shall
cooperate
with Ernst & Young LLP in making avail
