MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of
November 1, 2007
(this "Agreement"), is entered into between Natixis Real Estate
Capital Inc.
("Natixis RE"), Natixis Commercial Mortgage Funding, LLC, ("Natixis
CMF") and
Merrill Lynch Mortgage Investors, Inc. (the "Purchaser"). For
purposes of this
Agreement (except as set forth in Section 3(e)), each of Natixis RE
and Natixis
CMF is the "Seller" with respect to the Mortgage Loans (as defined
below).
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") acquired from other entities (the "Other Sellers"), 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 November 1, 2007 (the "Pooling and Servicing
Agreement"), among the
Purchaser as depositor, Wells Fargo Bank, National Association
("Wells Fargo")
and Midland Loan Services, Inc. as master servicers (each, in such
capacity, a
"Master Servicer"), LNR Partners, Inc. as special servicer (the
"Special
Servicer"), LaSalle Bank National Association as trustee (the
"Trustee") and
Wells Fargo as certificate administrator (the "Certificate
Administrator").
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
November 1, 2007 (the "Underwriting Agreement"), with Merrill
Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") for itself and as
representative
of Countrywide Securities Corporation ("Countrywide Securities"),
Natixis
Securities North America Inc. ("Natixis Securities"), Goldman,
Sachs & Co.
("Goldman Sachs") and Morgan Stanley & Co. Incorporated
("Morgan Stanley";
Merrill Lynch, Countrywide Securities, Natixis Securities, Goldman
Sachs and
Morgan Stanley, collectively, in such capacity, the
"Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates
that are to be
registered under the Securities Act of 1933, as amended (such
Certificates, the
"Publicly-Offered Certificates"). The Purchaser has also entered
into a
Certificate Purchase Agreement, dated as of November 1, 2007 (the
"Certificate
Purchase Agreement"), with Merrill Lynch for itself and as
representative of
Countrywide Securities (together in such capacity, the "Initial
Purchasers"),
whereby the Purchaser will sell to the Initial Purchasers all of
the remaining
Certificates (such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the
mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to
purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans being
sold by Natixis
RE and Natixis CMF hereunder (collectively, the "Natixis Mortgage
Pool") are
expected to have an aggregate principal balance of $257,055,928
(the "Natixis
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 Natixis
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 $2,809,835,146 (subject to a variance of plus or minus
5%). The
purchase and sale of the Natixis Mortgage Pool shall take place on
November 14,
2007 or such other date as shall be mutually acceptable to the
parties to this
Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration")
for the Mortgage Loans shall be equal to (i) approximately
102.92116% of the
Natixis Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$604,605.70,
which amount represents the amount of interest accrued on the
Natixis Mortgage
Loan Balance, as agreed to by each of Natixis RE and Natixis CMF
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, the
sub-servicing agreements
permitted thereunder and the Servicing Rights Purchase Agreement
(as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's
right, title and
interest in and to the proceeds of any related title, hazard,
primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may
be amended,
shall conform to the requirements set forth in this Agreement and
the Pooling
and Servicing Agreement.
(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.
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(c) The Seller hereby represents and warrants that it has
or will
have, on behalf of the Purchaser, delivered to the Trustee (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 Trustee 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 2007-9, Commercial
Mortgage
Pass-Through Certificates, Series 2007-9, 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 or, in the case of a MERS Mortgage Loan (as defined
below), an
original or a copy of the Mortgage, together with 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, with language
noting the
presence of the MIN (as defined below) of such Mortgage Loan
and language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(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 or, in the case of a MERS Mortgage Loan, an
original or
copy of any related Assignment of Leases (if such item is a
document
separate from the Mortgage), together with any and all
intervening
assignments thereof, in each case with evidence of recording
indicated
thereon or certified by the applicable recording office, with
language
noting the presence of the MIN of such Mortgage Loan and
language
indicating that such Mortgage Loan is a MERS Mortgage Loan;
(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
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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
2007-9, Commercial Mortgage Pass-Through Certificates, Series
2007-9 (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 2007-9, Commercial Mortgage Pass-Through
Certificates,
Series 2007-9, and in its capacity as lead lender on behalf of
the
holder(s) of the related Non-Trust Loan(s)), or in blank or,
in the case of
a MERS Mortgage Loan, evidence from MERS indicating the
Trustee's ownership
of such Mortgage Loan on the MERS(R) System and the Trustee as
the
beneficiary of the assignment(s) of (x) the Mortgage, (y) any
related
Assignment of Leases (if such item is a document separate from
the
Mortgage) and (z) any other recorded document relating to such
Mortgage
Loan otherwise included in the Mortgage File;
(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
2007-9,
Commercial Mortgage Pass-Through Certificates, Series 2007-9
(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
2007-9, Commercial Mortgage Pass-Through Certificates, Series
2007-9, and
in its capacity as lead lender on behalf of the holder(s) of
the related
Non-Trust Loan(s)), or in blank or, in the case of a MERS
Mortgage Loan (to
the extent not already evidenced pursuant to clause (iv)
above), evidence
from MERS indicating the Trustee's ownership of the Mortgage
Loan on the
MERS(R) System and the Trustee as beneficiary of the
assignment(s) of
unrecorded documents related to the Mortgage Loan;
(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
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suitable for filing in favor of LaSalle Bank National
Association, as
trustee for the registered holders of ML-CFC Commercial
Mortgage Trust
2007-9, Commercial Mortgage Pass-Through Certificates, Series
2007-9, 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 2007-9, Commercial Mortgage
Pass-Through
Certificates, Series 2007-9, and in its capacity as lead
lender on behalf
of the holder of the related Non-Trust Loan(s)), or in blank
or, in the
case of a MERS Mortgage Loan, evidence from MERS indicating
the Trustee's
ownership of such Mortgage Loan on the MERS(R) System and the
Trustee as
the beneficiary of any effective UCC Financing Statement in
favor of the
Seller on record with the applicable public office for UCC
Financing
Statements;
(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
Co-Lender Agreement.
The foregoing Mortgage File delivery requirement shall be
subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
For purposes of this Section 2(c):
"MERS" means Mortgage Electronic Registration Systems,
Inc., a
corporation organized and existing under the laws of the State of
Delaware, or
any successor thereto.
"MERS Mortgage Loan" means any Mortgage Loan registered
with MERS on
the MERS(R) System, as to which MERS is acting as mortgagee, solely
as nominee
for the Seller and its successors and assigns, which Mortgage Loans
are
identified on Schedule III hereto.
"MERS(R) System" means the system of recording transfers
of mortgages
electronically maintained by MERS.
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"MIN" means the mortgage identification number on the
MERS(R) System
for any MERS Mortgage Loan.
(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 Trustee) 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 Trustee following recording, and each such
assignment
and UCC Financing Statement assignment shall reflect that the file
copy thereof
should be returned to the Trustee 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 Trustee
(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 Trustee in connection with any such recording, filing or
delivery performed
by the Trustee at the Seller's request and the fees of the
Recording/Filing
Agent.
If, on the Closing Date as to any MERS Mortgage Loan, the
Seller does
not deliver written evidence of the Trustee's ownership of such
Mortgage Loan on
the MERS(R) System showing the Trustee as a beneficiary of the
assignment
referred to in each of clause (iv) and (v) of the definition of
"Mortgage File"
or the UCC Financing Statements referred to in clause (viii) of the
definition
of "Mortgage File", the Seller may satisfy the delivery
requirements of this
Agreement and Section 2.01(b) of the Pooling and Servicing
Agreement by
delivering such evidence of ownership within 90 days following the
Closing Date;
provided that, during such time, the Seller shall execute any
documents
requested by the Master Servicer or the Special Servicer with
respect to such
MERS Mortgage Loan that, in the reasonable discretion of the Master
Servicer or
the Special Servicer (exercised in accordance with the Servicing
Standard), are
necessary to evidence the Trustee's ownership of, or are otherwise
required for
an immediate servicing need with respect to, such Mortgage Loan.
(e) All such other relevant documents and records that
(a) relate to
the administration or servicing of the Mortgage Loans, (b) are
reasonably
necessary for the ongoing administration and/or servicing of such
Mortgage Loans
by the applicable Master Servicer in
6
connection with its duties under the Pooling and Servicing
Agreement, and (c)
are in the possession or under the control of the Seller, together
with all
unapplied escrow amounts and reserve amounts in the possession or
under the
control of the Seller that relate to the Mortgage Loans, shall be
delivered or
caused to be delivered by the Seller to the applicable Master
Servicer (or, at
the direction of such Master Servicer, to the appropriate
sub-servicer);
provided that the Seller shall not be required to deliver any draft
documents,
privileged or other communications, credit underwriting, legal or
other due
diligence analyses, credit committee briefs or memoranda or other
internal
approval documents or data or internal worksheets, memoranda,
communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to
the Trustee,
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 Trustee or any other
person because the
delivery of the mortgage loan checklist is being provided to the
Trustee 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.
(g) On or before the Closing Date, the Seller shall
provide to the
applicable Master Servicer, the initial data (as of the Cut-off
Date or the most
recent earlier date for which such data is available) contemplated
by the CMSA
Loan Setup File, the CMSA Loan Periodic Update File, the CMSA
Operating
Statement Analysis Report and the CMSA Property File.
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 duly organized (as a corporation
in the case of
Natixis RE and, as a limited liability company, in the case of
Natixis
CMF), validly existing and in good standing under the laws of
the
jurisdiction of organization or formation (New York in the
case of Natixis
RE and Delaware in the case of Natixis CMF) 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
7
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 organizational or
formation
documents 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 organizational or formation,
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
8
reasonable judgment, prohibit its entering into this Agreement
or
materially and adversely affect the validity of this Agreement
or the
performance by the Seller of its obligations under this
Agreement.
(ix) Under generally accepted accounting principles
("GAAP") and
for federal income tax purposes, the Seller will report the
transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage
Loans to the
Purchaser in exchange for consideration consisting of a cash
amount equal
to the Purchase Consideration. The consideration received by
the Seller
upon the sale of the Mortgage Loans to the Purchaser will
constitute at
least reasonably equivalent value and fair consideration for
the Mortgage
Loans. The Seller will be solvent at all relevant times prior
to, and will
not be rendered insolvent by, the sale of the Mortgage Loans
to the
Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser
with any intent to hinder, delay or defraud any of the
creditors of the
Seller.
(x) The Prospectus Supplement contains all the
information that
is required to be provided in respect of the Seller (that
arise from its
role as "sponsor" (within the meaning of Regulation AB)), the
Mortgage
Loans, the related Mortgagors and the related Mortgaged
Properties pursuant
to Regulation AB. For purpose of this Agreement, "Regulation
AB" shall mean
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17
C.F.R.
Sections 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 receives written notice of a Document
Defect or a
Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling
and Servicing Agreement, then the Seller shall, not later than 90
days from
receipt of such notice (or, in the case of a Document Defect or
Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days
from any party
to the Pooling and Servicing Agreement discovering such Document
Defect or
Breach, provided the Seller receives such notice in a timely
manner), if such
Document Defect or Breach materially and adversely affects the
value of the
related Mortgage Loan or the interests of the Certificateholders
therein, cure
such Document Defect or Breach, as the case may be, in all material
respects,
which shall include payment of losses and any Additional Trust Fund
Expenses
associated therewith or, if such Document Defect or Breach (other
than omissions
due solely to a document not having been returned by the related
recording
office) cannot be cured within such 90-day period, (i) repurchase
the affected
Mortgage Loan (which, for the purposes of this clause (i), shall
include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling
and Servicing
Agreement) not later than the end of such 90-day period or (ii)
substitute a
9
Qualified Substitute Mortgage Loan for such affected Mortgage Loan
(which, for
purposes of this clause (ii), shall include an REO Loan) not later
than the end
of such 90-day period (and in no event later than the second
anniversary of the
Closing Date) and pay the applicable Master Servicer for deposit
into its
Collection Account any Substitution Shortfall Amount in connection
therewith;
provided, however, that, unless the Document Defect or Breach would
cause the
Mortgage Loan not to be a Qualified Mortgage, if such Document
Defect or Breach
is capable of being cured but not within such 90-day period and the
Seller has
commenced and is diligently proceeding with the cure of such
Document Defect or
Breach within such 90-day period, the Seller shall have an
additional 90 days to
complete such cure (or, failing such cure, to repurchase or
substitute the
related Mortgage Loan (which, for purposes of such repurchase or
substitution,
shall include an REO Loan)); and provided, further, that with
respect to such
additional 90-day period, the Seller shall have delivered an
officer's
certificate to the Certificate Administrator setting forth the
reason(s) such
Document Defect or Breach is not capable of being cured within the
initial
90-day period and what actions the Seller is pursuing in connection
with the
cure thereof and stating that the Seller anticipates that such
Document Defect
or Breach will be cured within the additional 90-day period.
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 the delivery by the Seller to the Certificate
Administrator,
at the expense of the Seller, of an Opinion of Counsel to the
effect that such
release would not cause either of REMIC I or REMIC II to fail to
qualify as a
REMIC under the Code or result in the imposition of any tax on
"prohibited
transactions" or "contributions" after the Startup Day under the
REMIC
Provisions. In the event that one or more of such other
10
Crossed Loans satisfy the aforementioned criteria, the Seller may
elect either
to repurchase or substitute for only the affected Crossed Loan as
to which the
related Document Defect or Breach exists or to repurchase or
substitute for all
of the Crossed Loans in the related Crossed Loan Group. All
documentation
relating to the termination of the cross-collateralization
provisions of a
Crossed Loan being repurchased shall be prepared at the expense of
the Seller
and, where required, with the consent of the related Mortgagor. For
a period of
two years from the Closing Date, so long as there remains any
Mortgage File
relating to a Mortgage Loan as to which there is any uncured
Document Defect or
Breach known to the Seller that existed as of the Closing Date, the
Seller shall
provide, once every 90 days, the officer's certificate to the
Certificate
Administrator described above as to the reason(s) such Document
Defect or Breach
remains uncured and as to the actions being taken to pursue cure;
provided,
however, that, without limiting the effect of the foregoing
provisions of this
Section 3(c), if such Document Defect or Breach shall materially
and adversely
affect the value of such Mortgage Loan or the interests of the
holders of the
Certificates therein (subject to the second and third provisos in
the sole
sentence of the preceding paragraph), the Seller shall in all cases
on or prior
to the second anniversary of the Closing Date either cause such
Document Defect
or Breach to be cured or repurchase or substitute for the affected
Mortgage Loan
(for the avoidance of doubt, the foregoing two-year period shall
not be deemed
to be a time limitation on the Seller's right to cure a Document
Defect or
Breach as set forth in this Section 3). The delivery of a
commitment to issue a
policy of lender's title insurance as described in representation 8
set forth on
Schedule I hereto in lieu of the delivery of the actual policy of
lender's title
insurance shall not be considered a Document Defect or Breach with
respect to
any Mortgage File if such actual policy of insurance is delivered
to the Trustee
or a Custodian on its behalf 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
Certificate
Administrator an Opinion of Counsel that such modification shall
not cause an
Adverse REMIC Event.
11
For purposes hereof, "Primary Collateral" shall mean the
Mortgaged
Property directly securing a Crossed Loan and excluding any
property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this
Section 3(c),
if there is a Document Defect or Breach (which Document Defect or
Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and, to the extent not
covered by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee,
the
Certificate Administrator 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
12
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 Trustee 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 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 Trustee 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 whose behalf
the
Certificate Administrator may act) on behalf of the
Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of
any
representation or warranty set forth in or required to be made
pursuant to this
Section 3. Notwithstanding any other provision of this Agreement,
the obligation
of the Seller to cure a Document Defect or Breach or to repurchase
a Mortgage
Loan shall be solely the obligations of Natixis RE and shall not be
an
obligation of Natixis CMF.
(f) If, upon any payment in full with respect to any MERS
Mortgage
Loan, none of the Trustee, the Master Servicer or any Sub-Servicer
of such
Mortgage Loan is registered with MERS and is unable to reflect the
release of
the related Mortgage on the MERS(R) System, the Seller shall take
all necessary
action to reflect the release of such Mortgage on the MERS(R)
System and shall
take such other actions as are necessary to enable the Master
Servicer and the
Trustee to comply with the provisions of Section 3.10 of the
Pooling and
Servicing Agreement and any other provisions relating to the
release of the
Mortgage Loan or the related Mortgage File.
13
SECTION 4. Representations, Warranties and Covenants of
the Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as
of the date
hereof that:
(a) The Purchaser is a corporation duly organized,
validly existing
and in good standing under the laws of the State of Delaware and
the Purchaser
has taken all necessary corporate action to authorize the
execution, delivery
and performance of this Agreement by it, and has the power and
authority to
execute, deliver and perform this Agreement and all transactions
contemplated
hereby.
(b) This Agreement has been duly and validly authorized,
executed and
delivered by the Purchaser, all requisite action by the Purchaser's
directors
and officers has been taken in connection therewith, and (assuming
the due
authorization, execution and delivery hereof by the Seller) this
Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent
transfer, reorganization, receivership, conservatorship or
moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or
(C) general
equity principles (regardless of whether such enforcement is
considered in a
proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and
the Purchaser's performance and compliance with the terms of this
Agreement will
not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate
any law or regulation or any administrative decree or order to
which it is
subject or (C) constitute a default (or an event which, with notice
or lapse of
time, or both, would constitute a default) under, or result in the
breach of,
any material contract, agreement or other instrument to which the
Purchaser is a
party or by which the Purchaser is bound, which default might have
consequences
that would, in the Purchaser's reasonable and good faith judgment,
materially
and adversely affect the condition (financial or other) or
operations of the
Purchaser or its properties or have consequences that would
materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any
agreement or
instrument or subject to any certificate of incorporation, bylaws
or any other
corporate restriction or any judgment, order, writ, injunction,
decree, law or
regulation that would, in the Purchaser's reasonable and good faith
judgment,
materially and adversely affect the ability of the Purchaser to
perform its
obligations under this Agreement or that requires the consent of
any third
person to 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.
14
(f) Under GAAP and for federal income tax purposes, the
Purchaser will
report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for
consideration
consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or
to the knowledge of the Purchaser, threatened against the Purchaser
in any court
or by or before any other governmental agency or instrumentality
which would
materially and adversely affect the validity of this Agreement or
any action
taken in connection with the obligations of the Purchaser
contemplated herein,
or which would be likely to impair materially the ability of the
Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any
order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or other governmental agency or body, which default might
have
consequences that would, in the Purchaser's reasonable and good
faith judgment,
materially and adversely affect the condition (financial or other)
or operations
of the Purchaser or its properties or might have consequences that
would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the
Mortgage Loans (the
"Closing") shall be held at the offices of Thacher Proffitt &
Wood LLP on the
Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the
Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and
all of the
representations and warranties of the Purchaser set forth in
Section 4 of this
Agreement shall be true and correct in all material respects as of
the Closing
Date;
(b) All documents specified in Section 6 of this
Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the
Purchaser, the Seller, the Underwriters and their respective
counsel in their
reasonable discretion, shall be duly executed and delivered by all
signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the
Trustee (or a
Custodian on its behalf) and the applicable Master Servicer,
respectively, all
documents represented to have been or required to be delivered to
the Trustee
and such 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;
15
(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 (as defined in Section 6(d) of this Agreement) and
Prospectus
Supplement (as defined in Section 6(d) of this Agreement),
respectively, shall
have been delivered; and
(g) The Seller shall have executed and delivered
concurrently herewith
that certain Indemnification Agreement, dated as of November 1,
2007, among the
Seller, the Other Sellers, 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 or collectively, as the case may be, the
"Servicing
Rights Purchase Agreement");
(b) An officer's certificate of the Seller, executed by a
duly
authorized officer of the Seller and dated the Closing Date, and
upon which the
Purchaser, the Underwriters and the Initial 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) An officer's certificate from an officer of the
Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to
the effect
that (i) such officer has carefully examined the Specified Portions
(as defined
below) of the Free Writing Prospectus and nothing has come to
his/her attention
that leads him/her to believe that the Specified Portions of the
Free Writing
Prospectus (when read together with the free writing prospectus
which was
distributed to prospective investors in the Certificates by e-mail
on November
1, 2007), as of the Time of Sale
16
or as of the Closing Date, included or include any untrue statement
of a
material fact relating to the Mortgage Loans or omitted or omit to
state therein
a material fact necessary in order to make the statements therein
relating to
the Mortgage Loans, in light of the circumstances under which they
were made,
not misleading, (ii) such officer has carefully examined the
Specified Portions
(as defined below) of the Prospectus Supplement and nothing has
come to his/her
attention that leads him/her to believe that the Specified Portions
of the
Prospectus Supplement, as of the date of the Prospectus Supplement
or as of the
Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein relating to
the Mortgage
Loans, in light of the circumstances under which they were made,
not misleading,
and (iii) such officer has carefully examined the Specified
Portions (as defined
below) of the Memorandum (pursuant to which certain classes of the
Private
Certificates are being privately offered) and nothing has come to
his/her
attention that leads him/her to believe that the Specified Portions
of the
Memorandum, as of the date thereof or as of the Closing Date,
included or
include any untrue statement of a material fact relating to the
Mortgage Loans
or omitted or omit to state therein a material fact necessary in
order to make
the statements therein related to the Mortgage Loans, in the light
of the
circumstances under which they were made, not misleading.
The "Specified Portions" of the Free Writing Prospectus
shall consist
of Annex A-1 to the Free Writing Prospectus, entitled "Certain
Characteristics
of the Mortgage Loans" (insofar as the information contained in
Annex A-1
relates to the Mortgage Loans sold by the Seller hereunder), Annex
A-1(YM) to
the Free Writing Prospectus entitled "Yield Maintenance Formulas"
(insofar as
the information contained in Annex A-1(YM) relates to the Mortgage
Loans sold by
the Seller hereunder), Annex A-2 to the Free Writing Prospectus,
entitled
"Certain Statistical Information Regarding the Mortgage Loans"
(insofar as the
information contained in Annex A-2 relates to the Mortgage Loans
sold by the
Seller hereunder), Annex B to the Free Writing Prospectus entitled
"Certain
Characteristics Regarding Multifamily Properties" (insofar as the
information
contained in Annex B relates to the Mortgage Loans sold by the
Seller
hereunder), Annex C to the Free Writing Prospectus, entitled
"Structural and
Collateral Term Sheet" (insofar as the information contained in
Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the CD-ROM
which
accompanies the Free Writing Prospectus (insofar as such CD-ROM is
consistent
with Annex A-1, Annex A-1(YM), Annex A-2 and/or Annex B and only
insofar as the
information contained therein relates to the Mortgage Loans sold by
the Seller
hereunder), and the following sections of the Free Writing
Prospectus (only to
the extent that any such information relates to the Seller (solely
in its
capacity as a seller, sponsor or originator of the Mortgage Loans
sold by the
Seller hereunder), or the Mortgage Loans sold by the Seller
hereunder and
exclusive of any statements in such sections that purport to
describe the
servicing and administration provisions of the Pooling and
Servicing Agreement
and exclusive of aggregated numerical information that includes the
Other
Mortgage Loans): "Summary of Offering Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering
Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool",
"Transaction
Participants--The Sponsors" and "Affiliations and Certain
Relationships and
Related Transactions".
The "Specified Portions" of the Prospectus Supplement
shall consist of
Annex A-1 to the Prospectus Supplement, entitled "Certain
Characteristics of the
Mortgage Loans"
17
(insofar as the information contained in Annex A-1 relates to the
Mortgage Loans
sold by the Seller hereunder), Annex A-1(YM) to the Prospectus
Supplement
entitled "Yield Maintenance Formulas" (insofar as the information
contained in
Annex A-1(YM) relates to the Mortgage Loans sold by the Seller
hereunder), Annex
A-2 to the Prospectus Supplement, entitled "Certain Statistical
Information
Regarding the Mortgage Loans" (insofar as the information contained
in Annex A-2
relates to the Mortgage Loans sold by the Seller hereunder), Annex
B to the
Prospectus Supplement entitled "Certain Characteristics Regarding
Multifamily
Properties" (insofar as the information contained in Annex B
relates to the
Mortgage Loans sold by the Seller hereunder), Annex C to the
Prospectus
Supplement, entitled "Description of the Ten Largest Mortgage
Loans" (insofar as
the information contained in Annex C relates to the Mortgage Loans
sold by the
Seller hereunder), the CD-ROM which accompanies the Prospectus
Supplement
(insofar as such CD-ROM is consistent with Annex A-1, Annex
A-1(YM), Annex A-2
and/or Annex B and only insofar as the information contained
therein related to
the Mortgage Loans sold by the Seller hereunder), and the following
sections of
the Prospectus Supplement (only to the extent that any such
information relates
to the Seller (solely in its capacity as a seller, sponsor or
originator of the
Mortgage Loans sold by the Seller hereunder), or the Mortgage Loans
sold by the
Seller hereunder and exclusive of any statements in such sections
that purport
to describe the servicing and administration provisions of the
Pooling and
Servicing Agreement and exclusive of aggregated numerical
information that
includes the Other Mortgage Loans): "Summary of Prospectus
Supplement--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Prospectus
Supplement--The
Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool",
"Transaction
Participants--The Sponsors" and "Affiliations and Certain
Relationships and
Related Transactions".
The "Specified Portions" of the Memorandum shall consist
of the
Specified Portions of the Prospectus Supplement (as attached as an
exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the
following
terms have the meanings set forth below:
"Free Writing Prospectus" means the Offering Prospectus
dated October
25, 2007, and relating to the Publicly Offered Certificates.
"Memorandum" means the confidential Private Placement
Memorandum dated
November 1, 2007, and relating to the Private Certificates;
"Prospectus" means the prospectus dated May 10, 2007.
"Prospectus Supplement" means the prospectus supplement
dated November
1, 2007, that supplements the Prospectus and relates to the
Publicly-Offered
Certificates; and
"Time of Sale" means November 1, 2007, at 11:10 a.m.
(e) Each of: (i) the resolutions of the Seller's board of
directors
(or equivalent body) or a committee thereof authorizing the
Seller's entering
into the transactions contemplated by this Agreement, (ii) the
organizational or
formation documents and bylaws of the Seller, and (iii) an original
or a copy of
a certificate of good standing (or equivalent certification) of the
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Seller issued by the appropriate office in the jurisdiction of its
organization
or formation not earlier than 30 days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating
to
organizational and enforceability matters (which opinion may be
from in-house
counsel, outside counsel or a combination thereof), reasonably
satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and
addressed to the Purchaser, the Trustee, the Certificate
Administrator, the
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
(g) Such further certificates, opinions and documents as
the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is
terminated, both
the Seller and the Purchaser shall pay their respective share of
the transaction
expenses incurred in connection with the transactions contemplated
herein as set
forth in the closing statement prepared by the Purchaser and
delivered to and
approved by the Seller on or before the Closing Date, and in the
memorandum of
understanding to which the Seller and the Purchaser (or an
affiliate thereof)
are parties with respect to the transactions contemplated by this
Agreement.
SECTION 8. 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
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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 (that arise from its
role as sponsor
with respect to the Mortgage Loans), reasonably determined in good
faith by the
Purchaser as required to be reported on Form 8-K, Form 10-D or Form
10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in
such form)
insofar as such disclosure is required under Item 1117 or 1119 of
Regulation AB
or Item 1.03 to Form 8-K. The Seller shall use reasonable efforts
to deliver
proposed disclosure language relating to any event, specifically
relating to the
Seller (that arise from its role as sponsor with respect to the
Mortgage Loans),
described under Item 1117 or 1119 of Regulation AB or Item 1.03 to
Form 8-K to
the Purchaser as soon as reasonably practicable after the Seller
becomes aware
of such event and in no event more than two (2) business days
following the
occurrence of such event if such event is reportable under Item
1.03 to Form
8-K. The obligation of the Seller to provide the above referenced
disclosure
materials in any fiscal year of the Trust Fund will terminate upon
the Trustee
filing a Form 15 with respect to the Trust Fund as to that fiscal
year in
accordance with Section 8.16 of the Pooling and Servicing Agreement
or the
reporting requirements with respect to the Trust Fund under the
Securities
Exchange Act of 1934, as amended (the "1934 Act"), have otherwise
automatically
suspended. The Seller hereby acknowledges that the information to
be provided by
it pursuant to this Section 9 will be used in the preparation of
reports on Form
8-K, Form 10-D or Form 10-K with respect to the Trust Fund as
required under the
1934 Act and any applicable rules promulgated thereunder and as
required under
Regulation AB.
SECTION 10. Notices. All notices, copies, requests,
consents, demands
and other communications required hereunder shall be in writing and
sent either
by certified mail (return receipt requested) or by courier service
(proof of
delivery requested) to the intended recipient at the "Address for
Notices"
specified for such party on Exhibit A hereto, or as to either
party, at such
other address as shall be designated by such party in a notice
hereunder to the
other party. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
received, in each
case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to
Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
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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
21
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
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