Exhibit 99.5
Nationwide Mortgage Loan Purchase Agreement
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(NATIONWIDE LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
November 1, 2007, between Nationwide Life Insurance Company (the
"Seller"), and
Morgan Stanley Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to
purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage
Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a
trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the
"Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the
Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Wells
Fargo Bank,
National Association, as Wells Fargo Master Servicer, NCB, FSB, as
NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer,
National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank
National
Association, as Trustee and Custodian, and Wells Fargo Bank,
National
Association, as Paying Agent, Certificate Registrar and
Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans
(the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will
issue to the
Depositor pass-through certificates to be known as Morgan Stanley
Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the
Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Pooling and Servicing
Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA
Certificates
(the "Public Certificates") will be sold by the Purchaser to Morgan
Stanley &
Co. Incorporated, Greenwich Capital Markets, Inc., Merrill Lynch,
Pierce, Fenner
& Smith (except with respect to Class A-4 Certificate) and RBC
Capital Markets
Corporation (collectively, the "Underwriters"), pursuant to an
Underwriting
Agreement, between the Purchaser and the Underwriters, dated
November 15, 2007
(the "Underwriting Agreement"), and the Class X-1, Class X-2, Class
B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class EI, Class R-I,
Class R-II and
Class R-III Certificates (collectively, the "Private Certificates")
will be sold
by the Purchaser to Morgan Stanley & Co. Incorporated (in such
capacity, the
"Initial Purchaser") pursuant to a Certificate Purchase Agreement,
between the
Purchaser and the Initial Purchaser, dated November 15, 2007 (the
"Certificate
Purchase Agreement"). The Underwriters will offer the Public
Certificates for
sale publicly pursuant to a Prospectus dated June 22, 2007, as
supplemented by a
Prospectus Supplement dated November 15, 2007 (together, the
"Prospectus
Supplement"), and the Initial Purchaser will offer the Private
Certificates
(other than the Class EI, Class R-I, Class R-II and Class R-III
Certificates)
for sale in transactions exempt from the registration requirements
of the
Securities Act of 1933 pursuant to a Private Placement Memorandum,
dated as of
November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, on a servicing released basis, the
Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off
Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in
the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will
have an
aggregate principal balance as of the close of business on the
Cut-Off Date,
after giving effect to any payments due on or before such date,
whether or not
received, of $75,000,000. The sale of the Mortgage Loans shall take
place on
November 29, 2007 or such other date as shall be mutually
acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid
by the
Purchaser for the Mortgage Loans shall equal the amount set forth
as such
purchase price on the Bill of Sale. The purchase price shall be
paid to the
Seller by wire transfer in immediately available funds on the
Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right,
title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed
to such
right, title and interest in and to the Mortgage Loans and the
Purchaser's
rights under this Agreement (to the extent set forth in Section
15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to receipt of the consideration referred to in
Section 1
hereof and the satisfaction of the conditions specified in Sections
6 and 7
hereof, the Seller does hereby transfer, assign, set over and
otherwise convey
to the Purchaser, without recourse, all the right, title and
interest of the
Seller, with the understanding that a Servicing Rights Purchase
Agreement, dated
as of November 29, 2007, will be executed by the Seller and the
applicable
Master Servicer, in and to the Mortgage Loans identified on the
Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it
may be
amended from time to time on or prior to the Closing Date, shall
conform to the
requirements of this Agreement and the Pooling and Servicing
Agreement. In
connection with such transfer and assignment, the Seller shall
deliver to the
Custodian on behalf of the Trustee, on behalf of the Purchaser, on
or prior to
the Closing Date, the Mortgage Note (as described in clause (a)
below) for each
Mortgage Loan and on or prior to the fifth Business Day after the
Closing Date,
five limited powers of attorney substantially in the form attached
hereto as
Exhibit 4 in favor of the Trustee, the applicable Master Servicer
and the
applicable Special Servicer to empower the Trustee, the applicable
Master
Servicer and, in the event of the failure or incapacity of the
Trustee and the
applicable Master Servicer, the applicable Special Servicer, to
submit for
recording, at the expense of the Seller, any mortgage loan
documents required to
be recorded as described in the Pooling and Servicing Agreement and
any
intervening assignments with evidence of recording thereon that are
required to
be included in the Mortgage Files (so long as original counterparts
have
previously been delivered to the Trustee). The Seller agrees to
reasonably
cooperate with the Trustee, the applicable Master Servicer and the
applicable
Special Servicer in connection with any additional powers of
attorney or
revisions thereto that are requested by such parties for purposes
of such
recordation. The parties hereto agree that no such power of
attorney shall be
used with respect to any Mortgage Loan by or under authorization by
any party
hereto except to the extent that the absence of a document
described in the
second preceding sentence with respect to such Mortgage Loan
remains unremedied
as of the earlier of (i) the date that is 180 days following the
delivery of
notice of such absence to the Seller, but in no event earlier than
18 months
from the Closing Date, and (ii) the date (if any) on which such
Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall
submit such
documents for recording, at the Seller's expense, after the periods
set forth
above; provided, however, the Trustee shall not submit such
assignments for
recording if the Seller produces evidence that it has sent any such
assignment
for recording and certifies that the Seller is awaiting its return
from the
applicable recording office. In addition, not later than the 30th
day following
the Closing Date, the Seller shall deliver to the Custodian on
behalf of the
Trustee each of the remaining documents or instruments specified
below (with
such exceptions and additional time periods as are permitted by
this Section)
with respect to each Mortgage Loan (each, a "Mortgage File"). (The
Seller
acknowledges that the term "without recourse" does not modify the
duties of the
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the
Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The
Mortgage
Files shall be released from escrow upon closing of the sale of the
Mortgage
Loans and payments of the purchase price therefor as contemplated
hereby. The
Mortgage File for each Mortgage Loan shall contain the following
documents:
(a) The original Mortgage Note bearing all intervening
endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank
National
Association, as Trustee for Morgan Stanley Capital I Inc.,
Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse,
representation or
warranty" or if the original Mortgage Note is not included therein,
then a lost
note affidavit and indemnity, with a copy of the Mortgage Note
attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a power of attorney, a
certified true
copy of the power of attorney certified by the public recorder's
office, with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed), or certified by a title
insurance
company or escrow company to be a true copy thereof; provided that
if such
original Mortgage cannot be delivered with evidence of recording
thereon on or
prior to the 90th day following the Closing Date because of a delay
caused by
the public recording office where such original Mortgage has been
delivered for
recordation or because such original Mortgage has been lost, the
Seller shall
deliver or cause to be delivered to the Trustee a true and correct
copy of such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate (as defined below) of
the Seller
stating that such original Mortgage has been sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original Mortgage
that has been lost after recordation, a certification by the
appropriate county
recording office where such Mortgage is recorded that such copy is
a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon (if applicable) or if any such
original
modification, consolidation or extension agreement has been
delivered to the
appropriate recording office for recordation and either has not yet
been
returned on or prior to the 90th day following the Closing Date
with evidence of
recordation thereon or has been lost after recordation, a true copy
of such
modification, consolidation or extension certified by the Seller
together with
(i) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the Seller stating that such original modification,
consolidation
or extension agreement has been dispatched or sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original
modification, consolidation or extension agreement that has been
lost after
recordation, a certification by the appropriate county recording
office where
such document is recorded that such copy is a true and complete
copy of the
original recorded modification, consolidation or extension
agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan,
in
form and substance acceptable for recording (except for recording
information
not yet available if the instrument being recorded has not been
returned from
the applicable recording office), signed by the holder of record in
blank or in
favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if
any,
with evidence of recording thereon or, if such original assignments
of Mortgage
have been delivered to the appropriate recorder's office for
recordation,
certified true copies of such assignments of Mortgage certified by
the Seller,
or in the case of an original blanket intervening assignment of
Mortgage
retained by the Seller, a copy thereof certified by the Seller or,
if any
original intervening assignment of Mortgage has not yet been
returned on or
prior to the 90th day following the Closing Date from the
applicable recording
office or has been lost, a true and correct copy thereof, together
with (i) in
the case of a delay caused by the public recording office, an
Officer's
Certificate of the Seller stating that such original intervening
assignment of
Mortgage has been sent to the appropriate public recording official
for
recordation or (ii) in the case of an original intervening
assignment of
Mortgage that has been lost after recordation, a certification by
the
appropriate county recording office where such assignment is
recorded that such
copy is a true and complete copy of the original recorded
intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence
of recording
thereon or certified by a title insurance company or escrow company
to be a true
copy thereof; provided that if such Assignment of Leases has not
been returned
on or prior to the 90th day following the Closing Date because of a
delay caused
by the applicable public recording office where such Assignment of
Leases has
been delivered for recordation or because such original Assignment
of Leases has
been lost, the Seller shall deliver or cause to be delivered to the
Trustee a
true and correct copy of such Assignment of Leases submitted for
recording,
together with, (i) in the case of a delay caused by the public
recording office,
an Officer's Certificate (as defined below) of the Seller stating
that such
Assignment of Leases has been sent to the appropriate public
recording official
for recordation or (ii) in the case of an original Assignment of
Leases that has
been lost after recordation, a certification by the appropriate
county recording
office where such Assignment of Leases is recorded that such copy
is a true and
complete copy of the original recorded Assignment of Leases, in
each case
together with an original assignment of such Assignment of Leases,
in recordable
form (except for recording information not yet available if the
instrument being
recorded has not been returned from the applicable recording
office), signed by
the holder of record in favor of "LaSalle Bank National
Association, as Trustee
for Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected
in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any,
constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder,
actual
"marked-up" title commitment, pro forma policy, or an agreement to
provide any
of the foregoing pursuant to binding escrow instructions executed
by the title
company or its authorized agent with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a copy of any of the
foregoing
certified by the title company with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a preliminary title
report with
the original Title Insurance Policy to follow within 180 days of
the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and
(B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements
to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage
Loan where the Mortgagor is the lessee under such ground lease and
there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other
than letters of
credit representing tenant security deposits which have been
collaterally
assigned to the lender), which shall be assigned and delivered to
the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf
of the Trust
with a copy to be held by the applicable Primary Servicer (or
Master Servicer),
and applied, drawn, reduced or released in accordance with
documents evidencing
or securing the applicable Mortgage Loan, the Pooling and Servicing
Agreement
and the Primary Servicing Agreement or (B) the original of each
letter of
credit, if any, constituting additional collateral for such
Mortgage Loan (other
than letters of credit representing tenant security deposits which
have been
collaterally assigned to the lender), which shall be held by the
applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee,
with a copy to
be held by the Custodian on behalf of the Trustee, and applied,
drawn, reduced
or released in accordance with documents evidencing or securing the
applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement (it being understood that the Seller has agreed (a) that
the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or
before the
Closing Date, the bank issuing the letter of credit that the letter
of credit
and the proceeds thereof belong to the Trust, and to use reasonable
efforts to
obtain within 30 days (but in any event to obtain within 90 days)
following the
Closing Date, an acknowledgement thereof by the bank (with a copy
of such
acknowledgement to be sent to the Custodian on behalf of the
Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any
liabilities,
charges, costs, fees or other expenses accruing from the failure of
the Seller
to assign the letter of credit hereunder). In the case of clause
(B) above, any
letter of credit held by the applicable Primary Servicer (or Master
Servicer)
shall be held in its capacity as agent of the Trust, and if the
applicable
Primary Servicer (or Master Servicer) sells its rights to service
the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer)
has agreed
to assign the applicable letter of credit to the Trust or at the
direction of
the applicable Special Servicer to such party as such Special
Servicer may
instruct, in each case, at the expense of the applicable Primary
Servicer (or
Master Servicer). The applicable Primary Servicer (or Master
Servicer) has
agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement,
if any, related to any Mortgage Loan;
(n) Copies
of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage
Loans with a
Cut-Off Date principal balance equal to or greater than
$20,000,000;
(o) The original of any Environmental Insurance Policy or, if
the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor
of the lender;
(q) With respect to hospitality properties, a copy of any
franchise
agreement, franchise comfort letter and applicable assignment or
transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one
or
more of the Chairman of the Board, any Vice Chairman, the
President, any Senior
Vice President, any Vice President, any Assistant Vice President,
any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and
assignment of Assignment of Leases referred to in clauses (d), (e)
and (f) may
be in the form of a single instrument assigning the Mortgage and
the Assignment
of Leases to the extent permitted by applicable law. To avoid the
unnecessary
expense and administrative inconvenience associated with the
execution and
recording or filing of multiple assignments of mortgages,
assignments of leases
(to the extent separate from the mortgages) and assignments of UCC
financing
statements, the Seller shall execute, in accordance with the third
succeeding
paragraph, the assignments of mortgages, the assignments of leases
(to the
extent separate from the mortgages) and the assignments of UCC
financing
statements relating to the Mortgage Loans naming the Trustee on
behalf of the
Certificateholders as assignee. Notwithstanding the fact that such
assignments
of mortgages, assignments of leases (to the extent separate from
the assignments
of mortgages) and assignments of UCC financing statements shall
name the Trustee
on behalf of the Certificateholders as the assignee, the parties
hereto
acknowledge and agree that the Mortgage Loans shall for all
purposes be deemed
to have been transferred from the Seller to the Purchaser and from
the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, any of the documents and/or instruments referred to
in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because
of a delay
caused by the public recording office where such document or
instrument has been
delivered for recordation within such 90-day period, but the Seller
delivers a
photocopy thereof (to the extent available, certified by the
appropriate county
recorder's office to be a true and complete copy of the original
thereof
submitted for recording or, if such certification is not available,
together
with an Officer's Certificate of the Seller stating that such
document has been
sent to the appropriate public recording official for recordation),
to the
Custodian on behalf of the Trustee within such 90-day period, the
Seller shall
then deliver within 180 days after the Closing Date the recorded
document (or
within such longer period after the Closing Date as the Custodian
on behalf of
the Trustee may consent to, which consent shall not be withheld so
long as the
Seller is, as certified in writing to the Trustee no less often
than monthly, in
good faith attempting to obtain from the appropriate county
recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall
be
entitled to all scheduled payments of principal due thereon after
the Cut-Off
Date, all other payments of principal collected after the Cut-Off
Date (other
than scheduled payments of principal due on or before the Cut-Off
Date), and all
payments of interest on the Mortgage Loans allocable to the period
commencing on
the Cut-Off Date. All scheduled payments of principal and interest
due on or
before the Cut-Off Date and collected after the Cut-Off Date shall
belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver
and the Purchaser, the Custodian on behalf of the Trustee or the
agents of
either may submit or cause to be submitted for recordation at the
expense of the
Seller, in the appropriate public office for real property records,
each
assignment referred to in clauses (d) and (f)(ii) above (with
recording
information in blank if such information is not yet available).
Within 15 days
following the Closing Date, the Seller shall deliver and the
Purchaser, the
Custodian on behalf of the Trustee or the agents of either may
submit or cause
to be submitted for filing, at the expense of the Seller, in the
appropriate
public office for Uniform Commercial Code financing statements, the
assignment
referred to in clause (i) above. If any such document or instrument
is lost or
returned unrecorded or unfiled, as the case may be, because of a
defect therein,
the Seller shall prepare a substitute therefor or cure such defect,
and the
Seller shall, at its own expense (except in the case of a document
or instrument
that is lost by the Trustee), record or file, as the case may be,
and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise
agreement,
the Seller shall provide a notice on or prior to the date that is
thirty (30)
days after the Closing Date to the franchisor of the transfer of
such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement,
and inform
the franchisor that any notices to the Mortgagor's lender pursuant
to such
franchise agreement should thereafter be forwarded to the
applicable Master
Servicer and provide a franchise comfort letter from the franchisor
on or prior
to the date that is thirty (30) days after the Closing Date. As to
each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter
of credit is
in place, the Seller shall notify, on or before the Closing Date,
the bank
issuing the letter of credit that such Mortgage Loan will be
transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such
letter of credit
and the proceeds thereof belong to the Trust or the applicable
Primary Servicer
(on behalf of the Trustee), as applicable, after such transfer, and
inform such
issuing bank that any notices to the Mortgagor's lender pursuant to
such letter
of credit should thereafter be forwarded to the Master Servicer or
the
applicable Primary Servicer, as the case may be, and use reasonable
efforts to
obtain within 30 days (but in any event to obtain within 90 days)
following the
Closing Date, an acknowledgement of the above notice by the bank
(with a copy of
such acknowledgement to be sent to the Custodian on behalf of the
Trustee) or a
reissued letter of credit. After the Closing Date, with respect to
any letter of
credit that has not yet been assigned to the Trust (or whose
beneficiary has not
yet been changed to that Trust), upon the written request of the
applicable
Master Servicer or the applicable Primary Servicer, the Seller will
draw on such
letter of credit as directed by the Master Servicer or such Primary
Servicer in
such notice to the extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents
or
its subcontractors that relate to the servicing of any Mortgage
Loans and that
are not required to be a part of the Mortgage File and are
reasonably necessary
for the ongoing administration and/or servicing of the applicable
Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at
the direction
of the applicable Master Servicer, on behalf of the Purchaser, on
or prior to
the 75th day after the Closing Date, in accordance with the Primary
Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be
(and
actually) delivered to the Seller pursuant to the applicable
Mortgage Loan
documents, copies of the following items: the Mortgage Note, any
Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity
agreement, any loan agreement, the insurance policies or
certificates, as
applicable, the property inspection reports, any financial
statements on the
property, any escrow analysis, the tax bills, the Appraisal, the
environmental
report, the engineering report, the asset summary, financial
information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreements and any Environmental Insurance Policies; provided,
however, the
Seller shall not be required to deliver any draft documents,
attorney-client
privileged communications, internal correspondence or credit
analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be
deemed a
delivery to the applicable Master Servicer and satisfy Seller's
obligations
under this sub-paragraph. Each of the foregoing items shall be
delivered by the
Seller in electronic form, to the extent such document is available
in such form
and such form is reasonably acceptable to the applicable Master
Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and
the other contents of the related Mortgage File shall be vested in
the Purchaser
and its assigns, and the ownership of all records and documents
with respect to
the related Mortgage Loan prepared by or that come into the
possession of the
Seller shall immediately vest in the Purchaser and its assigns, and
shall be
delivered promptly by the Seller to or on behalf of either the
Custodian (on
behalf of the Trustee) or the applicable Master Servicer as set
forth herein,
subject to the requirements of the Primary Servicing Agreement. The
Seller's and
Purchaser's records shall reflect the transfer of each Mortgage
Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance
of the Mortgage Loans and related property to the Purchaser by the
Seller as
provided in this Section 2 be, and be construed as, an absolute
sale of the
Mortgage Loans and related property. It is, further, not the
intention of the
parties that such conveyance be deemed a pledge of the Mortgage
Loans and
related property by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller. However, in the event that,
notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held
to be the
property of the Seller, or if for any other reason this Agreement
is held or
deemed to create a security interest in the Mortgage Loans or any
related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 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, whether now owned or
hereafter
acquired,
in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit and
investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the
Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance
policies,
all distributions with respect thereto payable after the
Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit,
investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other
Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit,
advices of
credit, instruments, money, documents, chattel paper or
certificated securities
shall be deemed to be possession by the secured party or possession
by a
purchaser for purposes of perfecting the security interest pursuant
to the
Uniform Commercial Code (including, without limitation, Sections
9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding
the
foregoing, the Seller makes no representation or warranty as to the
perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments,
receipts, or confirmations from persons holding such property,
shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from,
securities intermediaries, bailees or agents of, or Persons holding
for, the
Purchaser or its designee, as applicable, for the purpose of
perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take
such reasonable actions as may be necessary to ensure that, if this
Agreement
were deemed to create a security interest in the property described
above, 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 the Agreement. In such case, the Seller shall file all filings
necessary to
maintain the effectiveness of any original filings necessary under
the Uniform
Commercial Code as in effect in any jurisdiction to perfect such
security
interest in such property. In connection herewith, the Purchaser
shall have all
of the rights and remedies of a secured party and creditor under
the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to
purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause (a)
above) or lost note affidavit and indemnity required to be
delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to
this Section
2 on or before the Closing Date is not so delivered, or is not
properly executed
or is defective on its face, and the Purchaser's acceptance of the
related
Mortgage Loan on the Closing Date shall in no way constitute a
waiver of such
omission or defect or of the Purchaser's or its successors' and
assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall (i) deliver to the Purchaser on or before the
Closing Date a
diskette acceptable to the Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by the Purchaser,
(ii) deliver to
the Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at the Purchaser's headquarters in New York, and (iii)
otherwise
cooperate fully with the Purchaser in its examination of the credit
files,
underwriting documentation and Mortgage Files for the Mortgage
Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser
has
conducted or has failed to conduct any partial or complete
examination of the
credit files, underwriting documentation or Mortgage Files for the
Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to
cause the
Seller to cure any Material Document Defect or Material Breach
(each as defined
below), or to repurchase or replace the defective Mortgage Loans
pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the
Initial
Purchaser, the Trustee, the Custodian, the applicable Special
Servicer and each
Rating Agency to examine and audit all books, records and files
pertaining to
the Mortgage Loans, the Seller's underwriting procedures and the
Seller's
ability to perform or observe all of the terms, covenants and
conditions of this
Agreement. Such examinations and audits shall take place at one or
more offices
of the Seller during normal business hours and shall not be
conducted in a
manner that is disruptive to the Seller's normal business
operations upon
reasonable prior advance notice. In the course of such examinations
and audits,
the Seller will make available to such representatives of any of
the Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the
Custodian, the
applicable Special Servicer and each Rating Agency reasonably
adequate
facilities, as well as the assistance of a sufficient number of
knowledgeable
and responsible individuals who are familiar with the Mortgage
Loans and the
terms of this Agreement, and the Seller shall cooperate fully with
any such
examination and audit in all material respects. On or prior to the
Closing Date,
the Seller shall provide the Purchaser with all material
information regarding
the Seller's financial condition and access to knowledgeable
financial or
accounting officers for the purpose of answering questions with
respect to the
Seller's financial condition, financial statements as provided to
the Purchaser
or other developments affecting the Seller's ability to consummate
the
transactions contemplated hereby or otherwise affecting the Seller
in any
material respect. Within 45 days after the Closing Date, the Seller
shall
provide the applicable Master Servicer or Primary Servicer, if
applicable, with
any additional information identified by the applicable Master
Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA
Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one
or more designees or agents; provided the Purchaser has provided
the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the
Seller and the Mortgage Loans that has been delivered into the
Purchaser's
possession and that is not otherwise publicly available; provided,
however, that
such information shall not be kept confidential (and the right to
require
confidentiality under any confidentiality agreement is hereby
waived) to the
extent such information is required to be included in the
Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court
order to
disclose such information. If the Purchaser is required to disclose
in the
Memorandum or the Prospectus Supplement confidential information
regarding the
Seller as described in the preceding sentence, the Purchaser shall
provide to
the Seller a copy of the proposed form of such disclosure prior to
making such
disclosure and the Seller shall promptly, and in any event within
two Business
Days, notify the Purchaser of any inaccuracies therein, in which
case the
Purchaser shall modify such form in a manner that corrects such
inaccuracies. If
the Purchaser is required by law or court order to disclose
confidential
information regarding the Seller as described in the second
preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's
efforts to
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