MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of
November 1, 2007
(this "Agreement"), is entered into between LNR Capital Services,
Inc ("LNR
Capital"), LNR Carson Holdings, LLC ("LNR Carson") and LNR
Securities Holdings,
LLC ("LNR Securities") and Merrill Lynch Mortgage Investors, Inc.
(the
"Purchaser"). For purposes of this Agreement, each of LNR Capital,
LNR Carson
and LNR Securities is the "Seller" with respect to the Mortgage
Loan(s) (as
defined below) set forth opposite its name on Schedule A to this
Agreement (the
"LNR Seller Information Schedule").
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; provided that if only one
Mortgage
Loan is identified on the LNR Seller Information Schedule, then
references
herein to "Mortgage Loan" or "Mortgage Loans" shall mean that one
Mortgage Loan
and shall be construed accordingly. The Purchaser intends to
deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other
Mortgage
Loans") acquired from the 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 LNR
Capital, LNR Carson and LNR Securities hereunder (collectively, the
"LNR
Mortgage Pool") are expected to have an aggregate principal balance
of
$33,860,404 (the "LNR 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 LNR 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 LNR 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 LNR Mortgage Pool shall be equal to (i)
approximately
109.96328% of the LNR Mortgage Loan Balance as of the Cut-off Date,
plus (ii)
$93,356.36, which amount represents the amount of interest accrued
on the LNR
Mortgage Loan Balance, as agreed to by each of LNR Capital, LNR
Carson and LNR
Securities 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
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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 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 (or
an equivalent
document, as applicable) 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;
(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
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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;
(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;
(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
2007-9, 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;
(ix) an original or a copy of any Ground Lease,
guaranty or
ground lessor estoppel;
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(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.
(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 (with a copy to the Seller)
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,
5
filing or delivery performed by the Trustee 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 in connection with its duties
under the
Pooling and Servicing Agreement, and (c) are in the possession or
under the
control of the Seller, together with all unapplied escrow amounts
and reserve
amounts in the possession or under the control of the Seller that
relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the
Seller to
the applicable Master Servicer (or, at the direction of such Master
Servicer, to
the appropriate sub-servicer); provided that the Seller shall not
be required to
deliver any draft documents, privileged or other communications,
credit
underwriting, legal or other due diligence analyses, credit
committee briefs or
memoranda or other internal approval documents or data or internal
worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to
the 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 an entity of the type set forth
opposite its
name on the LNR Seller Information Schedule, duly organized or
formed, as
applicable, validly existing and in good standing under the
laws of the
jurisdiction set forth opposite its name on the LNR Seller
Information
Schedule, 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
6
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 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
document, 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
7
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 transfer in
accordance with
GAAP and as a sale for federal income tax purposes 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 transfer/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 transfer/sale
of the
Mortgage Loans to the Purchaser. The Seller is not
transferring/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, 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
8
Certificateholders therein, cure such Document Defect or Breach, as
the case may
be, in all material respects, which shall include payment of losses
and any
Additional Trust Fund Expenses associated therewith or, if such
Document Defect
or Breach (other than omissions due solely to a document not having
been
returned by the related recording office) cannot be cured within
such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the
purposes of
this clause (i), shall include an REO Loan) at the applicable
Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the
end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage
Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii),
shall include
an REO Loan) not later than the end of such 90-day period (and in
no event later
than the second anniversary of the Closing Date) and pay the
applicable Master
Servicer for deposit into its Collection Account any Substitution
Shortfall
Amount in connection therewith; provided, however, that, unless the
Document
Defect or Breach would cause the Mortgage Loan not to be a
Qualified Mortgage,
if such Document Defect or Breach is capable of being cured but not
within such
90-day period and the Seller has commenced and is diligently
proceeding with the
cure of such Document Defect or Breach within such 90-day period,
the Seller
shall have an additional 90 days to complete such cure (or, failing
such cure,
to repurchase or substitute the related Mortgage Loan (which, for
purposes of
such repurchase or substitution, shall include an REO Loan)); and
provided,
further, that with respect to such additional 90-day period, the
Seller shall
have delivered an officer's certificate to the Certificate
Administrator setting
forth the reason(s) such Document Defect or Breach is not capable
of being cured
within the initial 90-day period and what actions the Seller is
pursuing in
connection with the cure thereof and stating that the Seller
anticipates that
such Document Defect or Breach will be cured within the additional
90-day
period.
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
9
Trust Fund; and provided, further, that the repurchase or
replacement of less
than all such Crossed Loans and the release of any Crossed Loan
from a
cross-collateralization and cross-default provision shall be
further subject to
the delivery by the Seller to the Certificate Administrator, at the
expense of
the Seller, of an Opinion of Counsel to the effect that such
release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC
under the Code
or result in the imposition of any tax on "prohibited transactions"
or
"contributions" after the Startup Day under the REMIC Provisions.
In the event
that one or more of such other Crossed Loans satisfy the
aforementioned
criteria, the Seller may elect either to repurchase or substitute
for only the
affected Crossed Loan as to which the related Document Defect or
Breach exists
or to repurchase or substitute for all of the Crossed Loans in the
related
Crossed Loan Group. All documentation relating to the termination
of the
cross-collateralization provisions of a Crossed Loan being
repurchased shall be
prepared at the expense of the Seller and, where required, with the
consent of
the related Mortgagor. For a period of two years from the Closing
Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as
to which there
is any uncured Document Defect or Breach known to the Seller that
existed as of
the Closing Date, the Seller shall provide, once every 90 days, the
officer's
certificate to the Certificate Administrator described above as to
the reason(s)
such Document Defect or Breach remains uncured and as to the
actions being taken
to pursue cure; provided, however, that, without limiting the
effect of the
foregoing provisions of this Section 3(c), if such Document Defect
or Breach
shall materially and adversely affect the value of such Mortgage
Loan or the
interests of the holders of the Certificates therein (subject to
the second and
third provisos in the sole sentence of the preceding paragraph),
the Seller
shall in all cases on or prior to the second anniversary of the
Closing Date
either cause such Document Defect or Breach to be cured or
repurchase or
substitute for the affected Mortgage Loan (for the avoidance of
doubt, the
foregoing two-year period shall not be deemed to be a time
limitation on the
Seller's right to cure a Document Defect or Breach as set forth in
this Section
3). The delivery of a commitment to issue a policy of lender's
title insurance
as described in representation 8 set forth on Schedule I hereto in
lieu of the
delivery of the actual policy of lender's title insurance shall not
be
considered a Document Defect or Breach with respect to any Mortgage
File if such
actual policy of insurance is delivered to the 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
10
shall be allocated between such Crossed Loans in accordance with
the Mortgage
Loan documents, or, if the related Mortgage Loan documents do not
so provide,
then on a pro rata basis based upon their outstanding Stated
Principal Balances.
Notwithstanding the foregoing, if a Crossed Loan is modified to
terminate the
related cross-collateralization and/or cross-default provisions,
the Seller
shall furnish to the Certificate Administrator an Opinion of
Counsel that such
modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the
Mortgaged
Property directly securing a Crossed Loan and excluding any
property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this
Section 3(c),
if there is a Document Defect or Breach (which Document Defect or
Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and, to the extent not
covered by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee,
the
Certificate Administrator 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
11
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
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.
(f) In addition, with respect to the Mortgage Loan known
as (and
identified on Annex A-1 to the Prospectus Supplement as) 500 Carson
Town Center
(the "Early Defeasance Loan"), which Mortgage Loan permits
defeasance prior to
the second anniversary of the Closing Date, in the event the
related borrower
attempts to defease such Mortgage Loan on or before the second
anniversary of
the Closing Date (such defeasance, an "Early Defeasance"),
12
then the Seller shall, prior to the Early Defeasance, repurchase
that Early
Defeasance Loan at the applicable Purchase Price, together with a
Yield
Maintenance Payment (as defined below). The "Yield Maintenance
Payment" is an
amount equal to the amount which is the positive difference as of
the date of
repurchase between (i) the present value of all future scheduled
payments of
principal and interest through the due date for the Early
Defeasance Loan in
February 2021 (including the outstanding principal balance of the
Early
Defeasance Loan on the date of the Early Defeasance), discounted at
the Discount
Rate (as defined below), and (ii) the outstanding principal balance
of the Early
Defeasance Loan on the date of Early Defeasance. The "Discount
Rate" means the
rate which, when compounded monthly, is equivalent to the Treasury
Rate (as
hereinafter defined). The "Treasury Rate" means the yield to
maturity (adjusted
to a "mortgage equivalent basis" pursuant to the standards and
practices of the
Securities Industry Association) on the date of the Early
Defeasance, of the
United States treasury security having the term to maturity closest
to what
would otherwise have been the remaining term to maturity of the
Early Defeasance
Loan but for the Early Defeasance. In the event the Purchaser, the
Depositor or
the Trust Fund suffer any adverse tax consequence, loss, expense or
damage as a
result of the Seller's failure to repurchase an Early Defeasance
Loan as
required hereunder, the Seller shall immediately pay or reimburse
such person
for any loss, expense or damage incurred.
(g) 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, including the Early Defeasance Loan under the
circumstances
contemplated in Section 3(f), shall be the joint and several
obligations of LNR
Capital, LNR Carson and LNR Securities. The Purchaser, the Trustee
or the
Certificate Administrator shall be entitled to demand that any such
obligation
be performed by any one or all of LNR Capital, LNR Carson and LNR
Securities
with respect to any Mortgage Loan in the LNR Mortgage Loan Pool.
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).
13
(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.
(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.
14
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;
(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
15
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, as of the Time of Sale or as of the Closing Date,
included or
include any untrue statement of a material fact relating to the
Mortgage Loans
or omitted or omit to state therein a material fact necessary in
order to make
the statements therein relating to the Mortgage Loans, in light of
the
circumstances under which they were made, not misleading, (ii) such
officer has
carefully examined the Specified Portions (as defined below) of the
Prospectus
Supplement and nothing has come to his/her attention that leads
him/her to
believe that the Specified Portions of the Prospectus Supplement,
as of the date
of the Prospectus Supplement or as of the Closing Date, included or
include any
untrue statement of a material fact relating to the Mortgage Loans
or omitted or
omit to state therein a material fact necessary in order to make
the statements
therein relating to the Mortgage Loans, in light of the
circumstances under
which they were made, not misleading, and (iii) such officer has
carefully
examined the Specified Portions (as defined below) of the
Memorandum (pursuant
to which certain classes of the Private Certificates are being
privately
offered) and nothing has come to his/her attention that leads
him/her to believe
that the Specified Portions of the Memorandum, as of the date
thereof or as of
the Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein related to
the Mortgage
Loans, in the light of the circumstances under which they were
made, not
misleading.
The "Specified Portions" of the Free Writing Prospectus
shall consist
of Annex A-1 to the Free Writing Prospectus, entitled "Certain
Characteristics
of the Mortgage Loans" (insofar as the information contained in
Annex A-1
relates to the Mortgage Loans sold by the
16
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 A-3 to the
Free Writing
Prospectus, entitled "500 Carson Town Center Amortization
Schedule", 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,
Annex A-3, 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" (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 A-3 to the Prospectus Supplement, entitled
"500 Carson
Town Center Amortization Schedule", 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, Annex A-3
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
17
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 or limited liability company
agreement, as
applicable, of the Seller, and (iii) an original or a copy of a
certificate of
good standing (or equivalent certification) of the Seller issued by
the
appropriate office in the jurisdiction of its organizational
formation not
earlier than 30 days prior to the Closing Date;
(f) A written opinion of counsel for the Seller relating
to
organizational and
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