Exhibit 99.3
RBC Mortgage Loan Purchase Agreement
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(RBC LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
November 1, 2007, between Royal Bank of Canada, acting through its
branch
located at One Liberty Plaza, New York, NY 10006-1404 (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 (together with
its
successors and assigns, the "Master Servicer"), NCB, FSB, as NCB
Master
Servicer, Centerline Servicing Inc., as General Special Servicer
(the "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 the Class A-4 Certificates) and
RBC Capital
Markets Corporation (collectively, the "Underwriters"), pursuant to
an
Underwriting Agreement, between the Purchaser and the Underwriters,
dated
November 15, 2007 (the "Underwriting Agreement"), and the Class
X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the
"Private
Certificates") will be sold by the Purchaser to Morgan Stanley
& Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant
to a
Certificate Purchase Agreement, between the Purchaser and the
Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The
Underwriters
will offer the Public Certificates for sale publicly pursuant to a
Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement
dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial
Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I,
Class R-II
and Class R-III Certificates) for sale in transactions exempt from
the
registration requirements of the Securities Act of 1933 pursuant to
a Private
Placement Memorandum, dated as of November 15, 2007 (the
"Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1.
Agreement to Purchase. The Seller agrees to sell, and
the Purchaser agrees to purchase, on a servicing released basis,
the Mortgage
Loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto
as Exhibit 1, as such schedule may be amended from time to time
prior to the
Closing Date to reflect the actual Mortgage Loans accepted by the
Purchaser
pursuant to the terms hereof. 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 approximately $165,728,100. 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 in the Bill of Sale (as defined
below). The
purchase price shall be paid to the Seller by wire transfer in
immediately
available funds on the Closing Date.
Notwithstanding anything to the contrary in this Agreement,
with
respect to the Mortgage Loans originated or acquired by the Seller
and subject
to defeasance, the Seller shall retain the right to designate and
establish the
successor borrower and to purchase or cause the purchase on behalf
of the
related borrower of the related defeasance collateral ("Seller
Defeasance Rights
and Obligations"). In the event the Master Servicer receives notice
of a
defeasance request with respect to a Mortgage Loan originated or
acquired by the
Seller and subject to defeasance, the Master Servicer shall provide
upon receipt
of such notice, written notice of such defeasance request to the
Seller or its
assignee. Until such time as the Seller provides written notice to
the contrary,
notice of a defeasance of a Mortgage Loan with Seller Defeasance
Rights and
Obligations shall be delivered to the Seller pursuant to the notice
provisions
of the Pooling and Servicing Agreement.
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 November 29, 2007, will be executed by the Seller and the
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 Master Servicer and the Special Servicer to
empower the
Trustee, the Master Servicer and, in the event of the failure or
incapacity of
the Trustee and the Master Servicer, the 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 Master Servicer and the 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
Custodian shall submit such documents for recording, at the
Seller's expense,
after the periods set forth above; provided, however, the Custodian
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 by an allonge attached thereto or 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 Authorized Person'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 Authorized
Person'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
Authorized
Person'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 Authorized Person's Certificate 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 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," 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 Master Servicer, and applied, drawn,
reduced or
released in accordance with documents evidencing or securing the
applicable
Mortgage Loan and the Pooling and 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 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
and the Pooling and 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 Master Servicer
shall be held
in its capacity as agent of the Trust, and if the Master Servicer
sells its
rights to service the applicable Mortgage Loan, the Master Servicer
has agreed
to assign the applicable letter of credit to the Trust or at the
direction of
the Special Servicer to such party as the Special Servicer may
instruct, in each
case, at the expense of the Master Servicer. The 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;
"Authorized Person's Certificate" shall mean a certificate
signed
by one or more of the Chairman of the Board, any Vice Chairman, any
Managing
Director or Director, the President, or any Executive Vice
President, Senior
Vice President, Second Vice President, Vice President or Assistant
Vice
President, any Treasurer, any Assistant Treasurer or any Secretary
or Assistant
Secretary or any other person duly authorized to certify matters
relating to the
Seller's U.S. commercial mortgage-backed securities business.
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 in blank
or 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 may 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 Authorized Person'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 Custodian on behalf
of 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 90 days following the Closing Date, the Seller shall
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) above (with recording
information in blank if
such information is not yet available). Within 15 days following
the Closing
Date, the Seller shall 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)(B) above.
Each such assignment shall reflect that it should be returned by
the public
recording office to the Custodian following recording or filing or
such party
responsible for recording such assignment shall be responsible for
forwarding
such assignment to the Custodian on behalf of the Trustee; provided
that in
those instances where the public recording office retains the
original
Assignment of Mortgage, assignment of Assignment of Leases or
assignment of UCC
financing statements, the Seller at its own expense shall (1)
provide to the
Custodian a certified copy of the recorded original of such
document and provide
copies thereof to the Master Servicer and the Special Servicer or
(2) pay all
expenses of the Custodian in connection with obtaining such
certified copy and
forwarding copies thereof to the Master Servicer and the Special
Servicer. 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 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 after such transfer, and
inform such
issuing bank that any notices to the Mortgagor's lender pursuant to
such letter
of credit should thereafter be forwarded to the Master Servicer,
and use
reasonable efforts to obtain within 30 days (but in any event to
obtain within
90 days) following the Closing Date, an acknowledgement of the
above notice by
the bank (with a copy of such acknowledgement to be sent to the
Custodian on
behalf of the Trustee) or a reissued letter of credit. After the
Closing Date,
with respect to any letter of credit that has not yet been assigned
to the
Trust, upon the written request of the Master Servicer, the Seller
will draw on
such letter of credit as directed by the Master 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 Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day
after the Closing Date.
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,
privileged or other
communications, credit, underwriting, legal or other due diligence,
analyses,
credit committee briefs or memoranda or other internal approval
documents or
drafts or internal worksheets, memoranda, communications or
evaluations, to the
extent created for internal use. 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 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 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 (other than the
servicing rights
thereto). 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 (other than the servicing rights
thereto), 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 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
reasonably cooperate 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 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
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 Master
Servicer with any
additional information identified by the Master Servicer, as
necessary to
complete the CMSA Property File, to the extent that such
information is
available.
The Purchaser may exercise any of its rights hereunder through
one or more designees or agents; provided the Purchaser has
provided the Seller
with prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the Seller and the Mortgage Loans that has been delivered into the
Purchaser's
possession and that is not otherwise publicly available; provided,
however, that
such information shall not be kept confidential (and the right to
require
confidentiality under any confidentiality agreement is hereby
waived) to the
extent such information is required to be included in the
Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court
order to
disclose such information. If the Purchaser is required to disclose
in the
Memorandum or the Prospectus Supplement confidential information
regarding the
Seller as described in the preceding sentence, the Purchaser shall
provide to
the Seller a copy of the proposed form of such disclosure prior to
making such
disclosure and the Seller shall promptly, and in any event within
two Business
Days, notify the Purchaser of any inaccuracies therein, in which
case the
Purchaser shall modify such form in a manner that corrects such
inaccuracies. If
the Purchaser is required by law or court order to disclose
confidential
information regarding the Seller as described in the second
preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's
efforts to
obtain a protective order or other reasonable assurance that
confidential
treatment will be accorded such information and, if in the absence
of a
protective order or such assurance, the Purchaser is compelled as a
matter of
law to disclose such information, the Purchaser shall, prior to
making such
disclosure, advise and consult with the Seller and its counsel as
to such
disclosure and the nature and wording of such disclosure and the
Purchaser shall
use reasonable efforts to obtain confidential treatment
therefor.
Notwithstanding the foregoing, if reasonably advised by counsel
that the
Purchaser is required by a regulatory agency or court order to make
such
disclosure immediately, then the Purchaser shall be permitted to
make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller hereby makes for the benefit of the Purchaser and its
assigns with
respect to each Mortgage Loan as of the date hereof (or as of such
other date
specifically set forth in the particular representation and
warranty) each of
the representations and warranties set forth on Exhibit 2 hereto,
except as
otherwise set forth on Schedule A attached hereto, and hereby
further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
Canadian chartered bank acting through its branch located at
One
Liberty Plaza, New York, New York 10006-1404 , is in good standing
and
has the requisite power and authority and legal right to own
the
Mortgage Loans and to transfer and convey the Mortgage Loans to
the
Purchaser and has the requisite power and authority to execute
and
deliver, engage in the transactions contemplated by, and perform
and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, and assuming the due
authorization, execution and delivery hereof by the Purchaser,
this
Agreement constitutes the valid, legal and binding agreement of
the
Seller, enforceable in accordance with its terms, except as
such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other
laws
relating to or affecting the rights of creditors generally, (C)
general equity principles (regardless of whether such enforcement
is
considered in a proceeding in equity or at law) or (D) public
policy
considerations underlying the securities laws, to the extent that
such
public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide
indemnification
from liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental
authority
or court is required, under federal or state law, for the
execution,
delivery and performance of or compliance by the Seller with
this
Agreement, or the consummation by the Seller of any transaction
contemplated hereby, other than (1) such qualifications as may
be
required under state securities or blue sky laws, (2) the filing
or
recording of financing statements, instruments of assignment and
other
similar documents necessary in connection with the Seller's sale
of
the Mortgage Loans to the Purchaser, (3) such consents,
approvals,
authorizations, qualifications, registrations, filings or notices
as
have been obtained and (4) where the lack of such consent,
approval,
authorization, qualification, registration, filing or notice would
not
have a material adverse effect on the performance by the Seller
under
this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser,
nor the execution, delivery or performance of this Agreement by
the
Seller, conflicts or will conflict with, results or will result in
a
breach of, or constitutes or will constitute a default under (A)
any
term or provision of the Seller's articles of organization or
by-laws,
(B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which
it
or any of its assets is bound or results in the creation or
imposition
of any lien, charge or encumbrance upon any of its property
pursuant
to the terms of any such indenture, mortgage, contract or other
instrument, other than pursuant to this Agreement, or (C) after
giving
effect to the consents or taking of the actions contemplated in
subsection (iii), any law, rule, regulation, order, judgment,
writ,
injunction or decree of any court or governmental authority
having
jurisdiction over the Seller or its assets, except where in any of
the
instances contemplated by clauses (B) or (C) above, any
conflict,
breach or default, or creation or imposition of any lien, charge
or
encumbrance, will not have a material adverse effect on the
consummation of the transactions contemplated hereby by the Seller
or
materially and adversely affect its ability to perform its
obligations
and duties hereunder or result in any material adverse change in
the
business, operations, financial condition, properties or assets of
the
Seller, or in any material impairment of the right or ability of
the
Seller to carry on its business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations of, the Seller pending or, to the Seller's
knowledge,
threatened in writing against the Seller before any court,
administrative agency or other tribunal, the outcome of which
could
reasonably be expected to materially and adversely affect the
transfer
of the Mortgage Loans to the Purchaser or the execution or
delivery
by, or enforceability against, the Seller of this Agreement or have
an
effect on the financial condition of the Seller that would
materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans
pursuant
to this Agreement will effect a transfer by the Seller of all of
its
right, title and interest in and to the Mortgage Loans to the
Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information
(as
defined in that certain indemnification agreement, dated as of
November 15, 2007, between the Seller, the Purchaser, the
Underwriters
and the Initial Purchaser (the "Indemnification Agreement"))
contained
in the Disclosure Information (as defined in the
Indemnification
Agreement) taken together as a whole, as of the Time of Sale
(as
defined in the Indemnification Agreement), and the Memorandum and
the
Prospectus Supplement, as of their respective dates, (i) does
not
contain any untrue statement of a material fact or omit to state
a
material fact necessary to make the statements therein, in the
light
of the circumstances under which they were made, not misleading
and
(ii) (other than the Memorandum) complies with the requirements of
and
contains all of the applicable information required by Regulation
AB
(as defined in the Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the
Seller
hereby covenants that the foregoing representations and warranties
and those set
forth on Exhibit 2 hereto will be true and correct in all material
respects on
and as of the Closing Date with the same effect as if made on the
Closing Date,
provided that any representations and warranties made as of a
specified date
shall be true and correct in all material respects as of such
specified date.
Each of the representations, warranties and covenants made by
the
Seller pursuant to this Section 4(a) shall survive the sale of the
Mortgage
Loans and shall continue in full force and effect notwithstanding
any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the
date hereof:
(i) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Delaware
with full power and authority to carry on its business as
presently
conducted
by it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to
enter
into and consummate all transactions contemplated by this
Agreement.
The Purchaser has duly and validly authorized the execution,
delivery
and performance of this Agreement and has duly and validly
executed
and delivered this Agreement. This Agreement, assuming due
authorization, execution and delivery by the Seller, constitutes
the
valid and binding obligation of the Purchaser, enforceable against
it
in accordance with its terms, except as such enforceability may
be
limited by bankruptcy, insolvency, reorganization, moratorium
and
other similar laws affecting the enforcement of creditors'
rights
generally and by general principles of equity, regardless of
whether
such enforcement is considered in a proceeding in equity or at
law.
(iii) No consent, approval, authorization or order of,
registration or filing with, or notice to, any governmental
authority
or court is required, under federal or state law, for the
execution,
delivery and performance of or compliance by the Purchaser with
this
Agreement, or the consummation by the Purchaser of any
transaction
contemplated hereby that has not been obtained or made by the
Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution, delivery and performance of this Agreement by the
Purchaser
will violate the Purchaser's certificate of incorporation or
by-laws
or constitute a default (or an event that, with notice or lapse
of
time or both, would constitute a default) under, or result in a
breach
of, any material agreement, contract, instrument or indenture to
which
the Purchaser is a party or that may be applicable to the Purchaser
or
its assets.
(v) The Purchaser's execution and delivery of this Agreement
and
its performance and compliance with the terms of this Agreement
will
not constitute a violation of, any law, rule, writ, injunction,
order
or decree of any court, or order or regulation of any federal,
state
or municipal government agency having jurisdiction over the
Purchaser
or its assets, which violation could materially and adversely
affect
the condition (financial or otherwise) or the operation of the
Purchaser or its assets or could materially and adversely affect
its
ability to perform its obligations and duties hereunder.
(vi) There are no actions or proceedings against, or
investigations of, the Purchaser pending or, to the Purchaser's
knowledge, threatened against the Purchaser before any court,
administrative agency or other tribunal, the outcome of which
could
reasonably be expected to adversely affect the transfer of the
Mortgage Loans, the issuance of the Certificates, the
execution,
delivery or enforceability of this Agreement or have an effect on
the
financial condition of the Purchaser that would materially and
adversely affect the ability of the Purchaser to perform its
obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchaser and their respective
affiliates,
that may be entitled to any commission or compensation in
connection
with the sale of the Mortgage Loans or consummation of any of
the
transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the
Purchaser
hereby covenants that the foregoing representations and warranties
will be true
and correct in all material respects on and as of the Closing Date
with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser
pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the
Seller.
(a) It is hereby acknowledged that the Seller shall make for
the
benefit of the Trustee on behalf of the holders of the
Certificates, by way of
the Purchaser's assignment of its rights hereunder to the Trustee,
the
representations and warranties set forth on Exhibit 2 hereto (each
as of the
date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required to be delivered to the Custodian on behalf of the Trustee
pursuant to
Section 2 is not delivered as and when required (and including the
expiration of
any grace or cure period), is not properly executed or is defective
on its face,
or if there is a breach of any of the representations and
warranties required to
be made by the Seller regarding the characteristics of the Mortgage
Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto,
and in either
case such defect or breach, either (i) materially and adversely
affects the
interests of the holders of the Certificates in the related
Mortgage Loan, or
(ii) both (A) the document defect or breach materially and
adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially
Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document
defect described
in the preceding clause (i) or (ii), a "Material Document Defect"
and such a
breach described in the preceding clause (i) or (ii) a "Material
Breach"), the
party discovering such Material Document Defect or Material Breach
shall
promptly notify, in writing, the other party; provided that any
breach of the
representation and warranty contained in paragraph (38) of such
Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or
yield
maintenance charge is not deemed "customary" for commercial
mortgage loans at
the time of origination as evidenced by (i) an opinion of tax
counsel to such
effect or (ii) a determination by the Internal Revenue Service that
such
provision is not customary. Promptly (but in any event within three
Business
Days) upon becoming aware of any such Material Document Defect or
Material
Breach, the Master Servicer shall, and the Special Servicer may,
request that
the Seller, not later than 90 days from the Seller's receipt of the
notice of
such Material Document Defect or Material Breach, cure such
Material Document
Defect or Material Breach, as the case may be, in all material
respects;
provided, however, that if such Material Document Defect or
Material Breach, as
the case may be, cannot be corrected or cured in all material
respects within
such 90-day period, and such Material Document Defect or Material
Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage"
(as defined
in the Code), but the Seller is diligently attempting to effect
such correction
or cure, as certified by the Seller in an Authorized Person's
Certificate
delivered to the Trustee, then the cure period will be extended for
an
additional 90 days unless, solely in the case of a Material
Document Defect, (x)
the Mortgage Loan is, at the end of the initial 90-day period, a
Specially
Serviced Mortgage Loan and a Servicing Transfer Event has occurred
as a result
of a monetary default or as described in clause (ii) or clause (v)
of the
definition of "Servicing Transfer Event" in the Pooling and
Servicing Agreement
and (y) the Material Document Defect was identified in a
certification delivered
to the Seller by the Trustee pursuant to Section 2.2 of the Pooling
and
Servicing Agreement not less than 90 days prior to the delivery of
the notice of
such Material Document Defect. The parties acknowledge that neither
delivery of
a certification or schedule of exceptions to the Seller pursuant to
Section 2.2
of the Pooling and Servicing Agreement or otherwise nor possession
of such
certification or schedule by the Seller shall, in and of itself,
constitute
delivery of notice of any Material Document Defect or knowledge or
awareness by
the Seller of any Material Document Defect listed therein.
The Seller hereby covenants and agrees that, if any such
Material
Document Defect or Material Breach cannot be corrected or cured in
all material
aspects within the above cure periods, the Seller shall, on or
before the
termination of such cure periods, either (i) repurchase the
affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the
Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if
within the
two-year period commencing on the Closing Date, at its option
replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such
defect relates
with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or
Material Breach would cause the Mortgage Loan to be other than a
"qualified
mortgage" (as defined in the Code), then notwithstanding the
previous sentence,
such repurchase or substitution must occur within 90 days from the
earlier of
the date the Seller discovered or was notified of the breach or
defect. The
Seller agrees that any substitution shall be completed in
accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as
contemplated
above, (ii) such Mortgage Loan is cross-collateralized and
cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the
applicable document
defect or breach does not constitute a Material Document Defect or
Material
Breach, as the case may be, as to such other Mortgage Loans
(without regard to
this paragraph), then the applicable document defect or breach (as
the case may
be) shall be deemed to constitute a Material Document Defect or
Material Breach,
as the case may be, as to each such other Mortgage Loan for
purposes of the
above provisions, and the Seller shall be obligated to repurchase
or replace
each such other Mortgage Loan in accordance with the provisions
above, unless,
in the case of such breach or document defect, both of the
following conditions
would be satisfied if the Seller were to repurchase or replace only
those
Mortgage Loans as to which a Material Document Defect or Material
Breach had
occurred without regard to this paragraph (the "Affected Loan(s)"):
(1) the debt
service coverage ratio for all such other Mortgage Loans (excluding
the Affected
Loan(s)) for the four calendar quarters immediately preceding the
repurchase or
replacement (determined as provided in the definition of Debt
Service Coverage
Ratio in the Pooling and Servicing Agreement, except that net cash
flow for such
four calendar quarters, rather than year-end, shall be used) is
equal to the
greater of (x) the debt service coverage ratio for all such
Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "NCF
DSCR" in
Appendix II to the Final Prospectus Supplement and (y) 1.25x, and
(2) the
Loan-to-Value Ratio for all such other Mortgage Loans (excluding
the Affected
Loan(s)) is not greater than the lesser of (x) the current
loan-to-value ratio
for all such Mortgage Loans (including the Affected Loan(s)) set
forth under the
heading "Cut-Off Date LTV" in Appendix II to the Final Prospectus
Supplement and
(y) 75%. The determination of the Master Servicer as to whether
either of the
conditions set forth above has been satisfied shall be conclusive
and binding in
the absence of manifest error. The Master Servicer will be entitled
to cause, or
direct the Seller to cause, to be delivered to the Master Servicer
at the
Seller's expense (i) an Appraisal of any or all of the related
Mortgaged
Properties for purposes of determining whether the condition set
forth in clause
(2) above has been satisfied, in each case at the expense of the
Seller if the
scope and cost of the Appraisal is approved by the Seller (such
approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not
requiring the
repurchase of each such Cross-Collateralized Loan will not
