Exhibit 10.3
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
NCB, FSB
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2007
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<PAGE>
TABLE OF CONTENTS
Page
----
Section 1. Transactions on
or Prior to the Closing Date....................
Section 2. Closing Date
Actions............................................
Section 3. Conveyance of
Mortgage Loans....................................
Section 4. Depositor's
Conditions to Closing...............................
Section 5. Seller's
Conditions to Closing..................................
Section 6. Representations
and Warranties of Seller........................
Section 7. Obligations of
Seller...........................................
Section 8. Crossed Mortgage
Loans..........................................
Section 9. Rating Agency
Fees; Costs and Expenses Associated with a
Defeasance....................................................
Section 10. Representations and
Warranties of Depositor.....................
Section 11. Survival of Certain
Representations, Warranties and Covenants...
Section 12. Transaction
Expenses............................................
Section 13. Recording Costs and
Expenses....................................
Section 14.
Notices.........................................................
Section 15. Notice of Exchange Act
Reportable Events........................
Section 16. Examination of
Mortgage Files...................................
Section 17.
Successors......................................................
Section 18. Governing
Law...................................................
Section 19.
Severability....................................................
Section 20. Further
Assurances..............................................
Section 21.
Counterparts....................................................
Section 22. Treatment as Security
Agreement.................................
Section 23. Recordation of
Agreement........................................
Schedule I Schedule of
Transaction Terms
Schedule II Mortgage Loan
Schedule
Schedule III
Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with
Lost Notes
Schedule V Exceptions to
Seller's Representations and Warranties
Exhibit A
Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of
Lost Note Affidavit
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of September 1, 2007, is made by and between NCB, FCB, a federal
savings bank
chartered by the Office of Thrift Supervision of the U.S.
Department of Treasury
("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware
corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms
attached hereto
as Schedule I, which is incorporated herein by this reference, or,
if not
defined therein or elsewhere in this Agreement, in the Pooling and
Servicing
Agreement specified on such Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein,
Seller
has agreed to sell to Depositor and Depositor has agreed to
purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan
Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage
Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit
the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created
pursuant to
the Pooling and Servicing Agreement and to cause the issuance of
the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and
for
good and valuable consideration, the receipt and adequacy of which
is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1.
Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files
with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule
to Wells
Fargo Bank, N.A. as trustee (the "Trustee") or its designee,
against receipt by
Seller of a written receipt, pursuant to an arrangement between
Seller and the
Trustee; provided, however, that, item (xvi) in the definition of
Mortgage File
(below) shall be delivered to the applicable Master Servicer for
inclusion in
the Servicer File (defined below) with a copy delivered to the
Trustee for
inclusion in the Mortgage File; and provided, further, that Seller
shall pay (or
cause the related Borrower to pay) any costs of the assignment or
amendment of
each letter of credit described under said item (xvi) required in
order for the
Trustee to draw on such letter of credit pursuant to the terms of
the Pooling
and Servicing Agreement and shall deliver the related assignment or
amendment
documents within thirty (30) days after the Closing Date. In
addition, prior to
such assignment or amendment of a letter of credit, Seller will
take all
necessary steps to enable the applicable Master Servicer to draw on
the related
letter of credit on behalf of the Trustee pursuant to the terms of
the Pooling
and Servicing Agreement, including, if necessary, drawing on the
letter of
credit in its own name pursuant to written instructions to draw
from the
applicable Master Servicer and upon receipt, immediately remitting
the proceeds
of such draw (or causing such proceeds to be remitted) to the
applicable Master
Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously
with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of
the
Certificates and the sale of (a) the Publicly Offered Certificates
by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b)
the Private
Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate
Purchase Agreement. The closing (the "Closing") shall take place at
the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial
Center, New York, New
York 10281, or such other location as agreed upon between the
parties hereto. On
the Closing Date, the following actions shall take place in
sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall
purchase
from
Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage
Loan Purchase Price payable in accordance with instructions
previously
provided to Depositor by Seller. The Mortgage Loan Purchase
Price
shall be paid by Depositor to Seller or at its direction by
wire
transfer
in immediately available funds to an account designated by
Seller
on or
prior to the Closing Date. The "Mortgage Loan Purchase Price"
paid
by
Depositor shall be equal to the amount that the Depositor and
the
Seller
have mutually agreed upon as the Seller's share of the net
securitization proceeds from the sale of the Publicly Offered
Certificates
and the
Private Certificates set forth in the Closing Statement (which
amount
includes, without limitation, accrued interest. Pursuant to the
terms of
the Pooling and Servicing Agreement, Depositor shall sell all
of
its right,
title and interest in and to the Mortgage Loans to the Trustee
(for the
benefit of the Holders of the Certificates.
(ii) Depositor shall sell to the Underwriters, and the
Underwriters
shall
purchase from Depositor, the Publicly Offered Certificates
pursuant
to the
Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and
the Initial Purchaser shall purchase from Depositor, the
Private
Certificates pursuant to the Certificate Purchase Agreement.
(iii) The Underwriters will offer the Publicly Offered
Certificates
for sale
to the public pursuant to the Prospectus and the Prospectus
Supplement
and the Initial Purchaser will privately place certain classes
of the
Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date,
Seller
shall sell, convey, assign and transfer, subject to any related
servicing rights
of any applicable Master Servicer under, and/or any applicable
Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without
recourse except as
provided herein, to Depositor, free and clear of any liens, claims
or other
encumbrances, all of Seller's right, title and interest in, to and
under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule
and (ii) all
property of Seller described in Section 21(b) of this Agreement,
including,
without limitation, (A) all scheduled payments of interest and
principal due on
or with respect to the Mortgage Loans after the Cut-off Date and
(B) all other
payments of interest, principal or prepayment premiums received on
or with
respect to the Mortgage Loans after the Cut-off Date, other than
any such
payments of interest or principal or prepayment premiums that were
due on or
prior to the Cut-off Date. The Mortgage File for each Mortgage Loan
shall
contain the following documents on a collective basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in
Schedule IV hereto, a "lost note affidavit" substantially in
the
form of
Exhibit B hereto and a true and complete copy of the Note),
bearing,
or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment
from the
Mortgage
Loan Originator either in blank or to Seller, and further
endorsed
(at the direction of Depositor given pursuant to this
Agreement)
by Seller,
on its face or by allonge attached thereto, without recourse,
either in
blank or to the order of the Trustee in the following form:
"Pay
to the
order of Wells Fargo Bank, N.A., as trustee for the registered
Holders of
Credit Suisse First Boston Mortgage Securities Corp.,
Commercial
Mortgage Pass-Through Certificates, Series 2007-C4, without
recourse,
representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or,
if
such
Mortgage has been returned by the related recording office, (A)
an
original,
(B) a certified copy or (C) a copy thereof from the applicable
recording
office, and originals or counterparts (or originals, certified
copies or
copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in
each
case in the form
submitted for recording or, if recorded, with evidence of
recording
indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form
(except
for any missing recording information and, if applicable,
completion
of the name of the assignee), from Seller (or the Mortgage Loan
Originator) either in blank or to "Wells Fargo Bank, N.A., as
trustee for
the
registered Holders of Credit Suisse First Boston Mortgage
Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4";
(iv) an original, counterpart or copy of any related Assignment
of
Leases (if
such item is a document separate from the Mortgage), and the
originals,
counterparts or copies of any intervening assignments thereof
from the
Mortgage Loan Originator of the Loan to Seller, in each case in
the form
submitted for recording or, if recorded, with evidence of
recording
thereon;
(v) an original assignment of any related Assignment of Leases
(if
such item
is a document separate from the Mortgage), in recordable form
(except
for any missing recording information and, if applicable,
completion
of the name of the assignee), from Seller (or the Mortgage Loan
Originator), either in blank or to "Wells Fargo Bank, N.A., as
trustee for
the
registered Holders of Credit Suisse First Boston Mortgage
Securities
Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2007-C4";
(vi) an original or true and complete copy of any related
Security
Agreement
(if such item is a document separate from the Mortgage), and
the
originals
or copies of any intervening assignments thereof from the
Mortgage
Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement
(if
such item
is a document separate from the Mortgage), from Seller (or the
Mortgage
Loan Originator) either in blank or to "Wells Fargo Bank, N.A.,
as trustee
for the registered Holders of Credit Suisse First Boston
Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates,
Series
2007-C4," which assignment may be included as part of an
omnibus
assignment
covering other documents relating to the Mortgage Loan
(provided
that such omnibus assignment is effective under applicable
law);
(viii) originals or copies of all (A) assumption agreements,
(B)
modifications, (C) written assurance agreements and (D)
substitution
agreements, together with any evidence, when appropriate, of
recording
thereon or
in the form submitted for recording, in those instances where
the terms
or provisions of the Mortgage, Note or any related security
document
have been modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof
(together
with all endorsements or riders that were issued with or
subsequent
to the issuance of such policy), or if the policy has not yet
been
issued, the original or a copy of a binding written commitment
(which
may be a
pro forma or specimen title insurance policy which has been
accepted
or approved in writing by the related title insurance company
or
escrow
instructions binding on the title insurer irrevocably
obligating
the title
insurer to issue such title insurance policy) or interim binder
that is
marked up as binding and countersigned by the title company,
insuring
the priority of the Mortgage as a first lien on the related
Mortgaged
Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the
obligations
of the
Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing
Statements and continuation statements which show the filing or
recording
thereof (including the filing number or other similar filing
information) sufficient to perfect (and maintain the perfection of)
the
security
interest held by the Mortgage Loan Originator (and each
assignee
of record
prior to the Trustee) in and to the personalty of the Borrower
at the
Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient
to
assign
each such UCC Financing Statement to the Trustee;
(xii) the original or copy of the power of attorney (with
evidence
of
recording thereon) granted by the Borrower if the Mortgage, Note
or
other
document or instrument referred to above was not signed by the
Borrower;
(xiii) an original or copy of any subordination agreement,
standstill
agreement or other intercreditor, co-lender or similar
agreement
relating to subordinate indebtedness, including any mezzanine
loan
documents or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts,
an original or copy of any related account control agreement
and
a copy of
the UCC Financing Statements, if any, submitted for filing with
respect to
Seller's security interest in the Cash Collateral Accounts and
Lock-Box
Accounts and all funds contained therein (together with UCC
Financing
Statement assignments in a form suitable for filing or
recording,
sufficient to transfer such security interest to the Trustee on
behalf of
the Certificateholders);
(xv) an original or copy of any related Loan Agreement (if
separate
from the
related Mortgage);
(xvi) the originals and copies of letters of credit, if any,
relating
to the Mortgage Loans and amendments thereto which entitles the
Trust to
draw thereon; provided that in connection with the delivery of
the
Mortgage File to the Trust, such originals shall be delivered to
the
applicable
Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies
thereof;
(xviii) the original or a copy of the ground lease, ground
lease
memorandum
and ground lease estoppels, if any, and of any amendments,
modifications or extensions thereto, if any, or certified copies
thereof;
(xix) copies of franchise agreements and franchisor comfort
letters,
if any,
for hospitality properties and any applicable
transfer/assignment
documents;
and
(xx) if applicable (and not for purposes of the Seller's
delivery
obligations), the original or a counterpart of any post-closing
agreement
relating
to any modification, waiver or amendment of any term of any
Mortgage
Loan (including fees charged the Borrower) required to be added
to the
Mortgage File pursuant to Section 3.20(j) of the Pooling and
Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (ii),
(iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be
recorded or filed
in accordance with the transfer contemplated by this Agreement),
(xii) and (xiv)
(other than assignments of UCC Financing Statements to be filed in
accordance
with the transfer contemplated by the related Mortgage Loan
Purchase Agreement)
of the last sentence of the first paragraph of this Section 3, with
evidence of
recording or filing thereon on the Closing Date, solely because of
a delay
caused by the public recording or filing office where such document
or
instrument has been delivered for recordation or filing, Seller:
(i) shall
deliver, or cause to be delivered, to the Trustee or its designee a
duplicate
original or true copy of such document or instrument certified by
the applicable
public recording or filing office, the applicable title insurance
company or
Seller to be a true and complete duplicate original or copy of the
original
thereof submitted for recording or filing; and (ii) shall deliver,
or cause to
be delivered, to the Trustee or its designee either the original of
such
non-delivered document or instrument, or a photocopy thereof
(certified by the
appropriate public recording or filing office to be a true and
complete copy of
the original thereof submitted for recording or filing), with
evidence of
recording or filing thereon (with a copy to the applicable Master
Servicer),
within 120 days after the Closing Date, which period may be
extended up to two
times, in each case for an additional period of 45 days (provided
that Seller,
as certified in writing to the Trustee prior to each such 45-day
extension, is
in good faith attempting to obtain from the appropriate recording
or filing
office such original or photocopy). Compliance with this paragraph
will satisfy
Seller's delivery requirements under this Section 3 with respect to
the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (ii),
(iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be
recorded or filed
in accordance with the transfer contemplated by this Agreement),
(xii) and (xiv)
(other than assignments of UCC Financing Statements to be filed in
accordance
with the transfer contemplated by the related Mortgage Loan
Purchase Agreement)
of the last sentence of the first paragraph of this Section 3, with
evidence of
recording or filing thereon for any other reason, including without
limitation,
that such non-delivered document or instrument has been lost, the
delivery
requirements of this Agreement shall be deemed to have been
satisfied and such
non-delivered document or instrument shall be deemed to have been
included in
the related Mortgage File if a photocopy of such non-delivered
document or
instrument (with evidence of recording or filing thereon and
certified by the
appropriate recording or filing office to be a true and complete
copy of the
original thereof as filed or recorded) is delivered to the Trustee
(with a copy
to the applicable Master Servicer) or its designee on or before the
Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or
recording
information of the related UCC Financing Statement with respect to
any Mortgage
Loan, solely because such UCC Financing Statement has not been
returned by the
public filing or recording office where such UCC Financing
Statement has been
delivered for filing or recording, Seller has so notified the
Trustee and shall
not be in breach of its obligations with respect to such delivery,
provided that
Seller promptly forwards such UCC Financing Statement to the
Trustee (with a
copy to the applicable Master Servicer) upon its return, together
with the
related original UCC Financing Statement assignment in a form
appropriate for
filing or recording.
Notwithstanding the foregoing, Seller may elect, at its sole
cost
and expense, but is not obligated to, engage a third-party
contractor to prepare
or complete in proper form for filing or recording any and all
assignments of
Mortgage, assignments of Assignments of Leases and assignments of
UCC Financing
Statements to the Trustee to be delivered pursuant to clauses
(iii), (v), and
(xi) of the last sentence of the first paragraph of this Section
3
(collectively, the "Assignments"), to submit those Assignments for
filing and
recording, as the case may be, in the applicable public filing and
recording
offices and to deliver those Assignments to the Trustee or its
designee as those
Assignments (or certified copies thereof) are received from the
applicable
filing and recording offices with evidence of such filing or
recording indicated
thereon. However, in the event Seller engages a third-party
contractor as
contemplated in the immediately preceding sentence, the rights,
duties and
obligations of Seller pursuant to this Agreement remain binding on
the Seller;
and, if Seller does not engage a third party as contemplated by the
immediately
preceding sentence, then Seller will still be liable for recording
and filing
fees and expenses of the Assignments as and to the extent
contemplated by
Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller
shall
deliver the Servicer Files with respect to each of the Mortgage
Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer
(with a copy to
the applicable Master Servicer) at the direction of the applicable
Master
Servicer), under the Pooling and Servicing Agreement on behalf of
the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer
File shall
contain all documents and records in Seller's possession relating
to such
applicable Mortgage Loans (including reserve and escrow agreements,
rent rolls,
leases, environmental and engineering reports, third-party
underwriting reports,
appraisals, surveys, legal opinions, estoppels, financial
statements, operating
statements and any other information provided by the respective
Borrower from
time to time, but excluding any draft documents, attorney/client
communications,
which are privileged or constitute legal or other due diligence
analyses, and
documents prepared by the Seller or any of its Affiliates solely
for internal
communication, credit underwriting or due diligence analyses (other
than the
underwriting information contained in the related underwriting
memorandum or
asset summary report prepared by the Seller in connection with the
preparation
of Exhibit A-1 to the Prospectus Supplement)) that are not required
to be a part
of a Mortgage File in accordance with the definition thereof,
together with
copies of all instruments and documents which are required to be a
part of the
related Mortgage File in accordance with the definition
thereof.
For purposes of this Section 3, and notwithstanding any
contrary
provision hereof or of the definition of "Mortgage File," if there
exists with
respect to any group of Crossed Mortgage Loans only one original or
certified
copy of any document or instrument described in the definition of
"Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such
group of
Crossed Mortgage Loans, the inclusion of the original or certified
copy of such
document or instrument in the Mortgage File for any of such Crossed
Mortgage
Loans and the inclusion of a copy of such original or certified
copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such
group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or
certified
copy, as the case may be, in the Mortgage File for each such
Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all
events
within three (3) Business Days after the Closing Date, cause all
funds on
deposit in escrow accounts maintained with respect to the Mortgage
Loans in the
name of Seller or any other name, to be transferred to or at the
direction of
the applicable Master Servicer (or, if applicable, to a
Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off
Date, all
other payments of principal due and collected after the Cut-off
Date, and all
payments of interest on the Mortgage Loans due after the Cut-off
Date, minus
that portion of any such payment which is allocable to the period
on or prior to
the Cut-off Date. All scheduled payments of principal due on or
before the
Cut-off Date and collected after the Cut-off Date, together with
the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage
and the
contents of the related Mortgage File shall be vested in Depositor
and the
ownership of all records and documents with respect to the related
Mortgage Loan
prepared by or which come into the possession of Seller as seller
of the
Mortgage Loans hereunder, exclusive in each case of documents
prepared by Seller
or any of its Affiliates solely for internal credit analysis or
other internal
uses or any attorney-client privileged communication, shall
immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other
amounts
received by Seller and not otherwise belonging to Seller pursuant
to this
Agreement shall be sent by Seller within three (3) Business Days
after Seller's
receipt thereof to the applicable Master Servicer via wire transfer
for deposit
by the applicable Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor,
as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange
for the
consideration specified in Section 2 hereof. In connection with the
foregoing,
Seller shall cause all of its financial and accounting records to
reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at
all times
following the Closing Date cause all of its records and financial
statements and
any relevant consolidated financial statements of any direct or
indirect parent
to clearly reflect that the Mortgage Loans have been transferred to
Depositor
and are no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's
ownership (or the ownership by any of Depositor's assignees) of the
Mortgage
Loans. Except for actions that are the express responsibility of
another party
hereunder or under the Pooling and Servicing Agreement, and further
except for
actions that Seller is expressly permitted to complete subsequent
to the Closing
Date, Seller shall, on or before the Closing Date, take all actions
required
under applicable law to effectuate the transfer of the Mortgage
Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations
of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan
Purchase
Price at the Closing Date under the terms of this Agreement are
subject to the
satisfaction of each of the following conditions at or before the
Closing:
(a) Each of the obligations of Seller required to be performed by
it
on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; all of the
representations and warranties of Seller under this Agreement
(subject to the
exceptions set forth in the Exception Report) shall be true and
correct in all
material respects as of the Closing Date; no event shall have
occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage
Files which,
with notice or the passage of time, would constitute a material
default under
this Agreement; and Depositor shall have received certificates to
the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in
escrow, all of
the following closing documents, in such forms as are agreed upon
and reasonably
acceptable to Depositor and Seller, duly executed by all
signatories other than
Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of
this
Agreement,
which shall have been delivered to and held by the Trustee or
its
designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations
and
warranties
set forth in Section 6(a) (subject to the exceptions set forth
in the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing
Date,
covering various corporate matters and such other matters as
shall
be
reasonably required by Depositor; provided that (A) such opinion
may
express
its reliance as to factual matters on, among other things
specified
in such opinion, the representations and warranties made
herein,
and on
certificates or other documents furnished by officers of Seller
and
(B) in
rendering the opinions expressed above, such counsel may limit
such
opinions
to matters governed by the laws of the State of New York and
the
laws of
the United States and shall not be required to express any
opinion
with
respect to the registration or qualification of the
Certificates
under any
applicable state or federal securities laws;
(v) such other certificates of Seller's officers or others and
such
other
documents to evidence fulfillment of the conditions set forth
in
this
Agreement as Depositor or its counsel may reasonably request;
and
(vi) all other information, documents, certificates, or letters
with
respect to
the Mortgage Loans or Seller and its Affiliates as are
reasonably
requested by Depositor in order for Depositor to perform any of
it
obligations or satisfy any of the conditions on its part to be
performed
or satisfied pursuant to any sale of Mortgage Loans by
Depositor
as
contemplated herein.
(c) Seller shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before
the
Closing Date, five (5) limited powers of attorney in favor of the
Trustee and
applicable Special Servicer empowering the Trustee and, in the
event of the
failure or incapacity of the Trustee, the applicable Special
Servicer, to
record, at the expense of Seller, any Mortgage Loan Documents
required to be
recorded and any intervening assignments with evidence of recording
thereon that
are required to be included in the Mortgage Files. Seller shall
reasonably
cooperate with the Trustee and the applicable Special Servicer in
connection
with any additional powers or revisions thereto that are requested
by such
parties.
Section 5. Seller's Conditions to Closing. The obligations of
Seller
under this Agreement shall be subject to the satisfaction, on the
Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed
by
it on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; and all of
the representations and warranties of Depositor under this
Agreement shall be
true and correct in all material respects as of the Closing Date;
and no event
shall have occurred with respect to Depositor which, with notice or
the passage
of time, would constitute a material default under this Agreement,
and Seller
shall have received certificates to that effect signed by
authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably
acceptable to Seller
and Depositor, duly executed by all signatories other than Seller,
as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing
Date, with
the resolutions of Depositor authorizing the transactions set
forth
therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of
Depositor; and
(ii) such other certificates of its officers or others, such
opinions
of Depositor's counsel and such other documents required to
evidence
fulfillment of the conditions set forth in this Agreement as
Seller or
its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other
terms
and conditions of this Agreement which it is required to perform or
comply with
at or before the Closing and shall have the ability to perform or
comply with
all duties, obligations, provisions and terms which it is required
to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
federal
savings
bank in good standing under the laws of the United States of
America.
Seller has conducted and is conducting its business so as to
comply in
all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction
over it,
except
where the failure so to comply would not have a materially
adverse
effect on
the performance by Seller of this Agreement, and there is no
charge,
action, investigation, suit or proceeding before or by any
court,
regulatory
authority or governmental agency or body pending or, to the
knowledge
of Seller, threatened, which is reasonably likely to materially
and
adversely affect the performance by Seller of this Agreement or
the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold,
transfer
and convey the Mortgage Loans and to execute and deliver this
Agreement
(and all agreements and documents executed and delivered by
Seller in
connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents
executed
and
delivered by Seller in connection herewith). Seller has duly
authorized
the execution, delivery and performance of this Agreement (and
all
agreements and documents executed and delivered by Seller in
connection
herewith), and has duly executed and delivered this Agreement
(and all
agreements and documents executed and delivered by Seller in
connection
herewith). This Agreement (and each agreement and document
executed
and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party
thereto,
constitutes the legal, valid and binding obligation of Seller
enforceable
in
accordance with its terms, except as such enforcement may be
limited by
bankruptcy, fraudulent transfer, insolvency, reorganization,
receivership,
moratorium
or other laws relating to or affecting the rights of creditors
generally,
by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and
by
considerations
of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement,
nor the fulfillment of or compliance with the terms and
conditions
of this Agreement by Seller, will (A) conflict with or result
in a
breach of any of the terms, conditions or provisions of
Seller's
articles
or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result
in a
breach of,
or constitute a default or result in an acceleration under, any
agreement
or instrument to which Seller is now a party or by which it (or
any of its
properties) is bound if compliance therewith is necessary (1)
to ensure
the enforceability of this Agreement or (2) for Seller to
perform
its duties and obligations under this Agreement (or any
agreement
or
document executed and delivered by Seller in connection herewith);
(C)
conflict
with or result in a breach of any legal restriction if
compliance
therewith
is necessary (1) to ensure the enforceability of this Agreement
or (2) for
Seller to perform its duties and obligations under this
Agreement
(or any agreement or document executed and delivered by Seller
in connection
herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its
property is
subject if
compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith); or (E) result
in
the
creation or imposition of any lien, charge or encumbrance that
would
have a
material adverse effect upon Seller's ability to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith), or materially
impair the
ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will
not cause
Seller to become insolvent and (2) is not intended by Seller to
hinder,
delay or defraud any of its present or future creditors. After
giving
effect to its transfer of the Mortgage Loans, as provided
herein,
the value
of Seller's assets, either taken at their present fair saleable
value or
at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and
obligations
of Seller,
and Seller will not be left with unreasonably small assets or
capital
with which to engage in and conduct its business. Seller does
not
intend to,
and does not believe that it will, incur debts or obligations
beyond its
ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy
of
Seller are
pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration
or filing
with, or notice to, any court or governmental agency or body
having
jurisdiction or regulatory authority over Seller is required
for
(A)
Seller's execution, delivery and performance of this Agreement (or
any
agreement
or document executed and delivered by Seller in connection
herewith),
(B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the
consummation by Seller of the transactions contemplated by this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith) or, to the extent so required, such
consent,
approval,
authorization, order, registration, filing or notice has been
obtained,
made or given (as applicable), except for the filing or
recording
of assignments and other Mortgage Loan Documents contemplated
by
the terms
of this Agreement and except that Seller may not be duly
qualified
to transact business as a foreign corporation or licensed in
one
or more
states if such qualification or licensing is not necessary to
ensure the
enforceability of this Agreement (or any agreement or document
executed and
delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is
receiving
new value. The consideration received by Seller upon the sale
of
the
Mortgage Loans constitutes at least fair consideration and
reasonably
equivalent
value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause
to
believe, that it cannot perform each and every covenant of
Seller
contained
in this Agreement (or any agreement or document executed and
delivered
by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to
Seller's
knowledge, threatened in writing against Seller which are
reasonably
likely to draw into question the validity of this Agreement (or
any
agreement or document executed and delivered by Seller in
connection
herewith)
or which, either in any one instance or in the aggregate, are
reasonably
likely to materially impair the ability of Seller to perform
its duties
and obligations under this Agreement (or any agreement or
document
executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this
Agreement
(and each agreement or document executed and delivered by
Seller
in
connection herewith) is in the ordinary course of business of
Seller
and
Seller's transfer, assignment and conveyance of the Mortgage
Loans
pursuant
to this Agreement are not subject to the bulk transfer or
similar
statutory
provisions in effect in any applicable jurisdiction. The
Mortgage
Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled,
by
reason of
any act or omission of Seller, to any commission or
compensation
in
connection with the sale of the Mortgage Loans to Depositor
hereunder
except for
(A) the reimbursement of expenses as described herein or
otherwise
in connection with the transactions described in Section 2
hereof and
(B) the commissions or compensation owed to the Underwriters or
the
Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument
to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially
and
adversely
affect the ability of Seller to perform its obligations under
this
Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto,
subject to the exceptions to such representations and
warranties
set forth
on Schedule V hereto, are true and correct in all material
respects
as of the date hereof with respect to the Mortgage Loans
identified
on Schedule II.
(xiii) The information set forth in any Disclosure Information
(as
defined in
the NCB, FSB Indemnification Agreement), as last forwarded to
each
prospective investor at or prior to the date on which a contract
for
sale was
entered into with such prospective investor, (i) does not
contain
any untrue
statement of a material fact or omit to state any material fact
necessary
to make the statements therein, in light of the circumstances
under
which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information
required by
Regulation
AB (as defined in the NCB, FSB Indemnification Agreement); but
only to
the extent that (i) such information regards the Mortgage Loans
and is
contained in the Loan Detail (as defined in the NCB, FSB
Indemnification Agreement) or, to the extent consistent therewith,
the
Diskette
(as defined in the NCB, FSB Indemnification Agreement) or (ii)
such
information regarding the Seller or the Mortgage Loans was
contained
in the
Confidential Offering Circular or the Prospectus Supplement
under
the
headings "Summary of Prospectus Supplement--Relevant
Parties/Entities," "--Sponsors and Mortgage Loan Sellers,"
"--Originators," "--The Underlying Mortgage Loans," "--Source of
the
Underlying Mortgage
Loans," "Risk Factors," "Description of the Sponsors
and
Mortgage Loan Sellers," "Description of the Underlying Mortgage
Loans"
and
"--Significant Mortgage Loans" and such information does not
represent
an
incorrect restatement or an incorrect aggregation of correct
information regarding the Mortgage Loans contained in the Loan
Detail.
(b) Seller hereby agrees that it shall be deemed to make, as of
the
date of substitution, to and for the benefit of the Trustee as the
holder of the
Mortgage Loan to be replaced, with respect to any replacement
mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage
Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of
this Agreement,
each of the representations and warranties set forth in Exhibit A
hereto
(references therein to "Closing Date" being deemed to be references
to the "date
of substitution" and references therein to "Cut-off Date" being
deemed to be
references to the "due date for the subject Replacement Mortgage
Loan during the
month of substitution"). From and after the date of substitution,
each
Replacement Mortgage Loan, if any, shall be deemed to constitute a
"Mortgage
Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations
and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and
shall
continue in full force and effect, notwithstanding any restrictive
or qualified
endorsement on the Notes and notwithstanding subsequent termination
of this
Agreement or the Pooling and Servicing Agreement. The
representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall not be impaired by any review or
examination of the
Mortgage Files or other documents evidencing or relating to the
Mortgage Loans
or any failure on the part of Depositor to review or examine such
documents and
shall inure to the benefit of the initial transferee of the
Mortgage Loans from
Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, but shall
not inure to the benefit of any subsequent transferee
thereafter.
If Seller receives notice of a breach of any of the
representations
or warranties made by Seller with respect to the Mortgage Loans
(subject to the
exceptions to such representations and warranties set forth in the
Exception
Report), as of the date hereof in Section 6(a)(xii) or as of the
Closing Date
pursuant to Section 4(b)(iii) (in either case, subject to the
exceptions to such
representations and warranties set forth in the Exception Report),
or in the
case of any Replacement Mortgage Loan, as of the date of
substitution pursuant
to Section 6(b) (in any such case, a "Breach"), or receives notice
that (a) any
document required to be included in the Mortgage File related to
any Mortgage
Loan is not in the Trustee's (or its designee's) possession within
the time
period required herein or (b) such document has not been properly
executed or is
otherwise defective on its face (clause (a) and clause (b) each, a
"Defect"
(which term shall include the "Defects" detailed in the immediately
following
paragraph) in the related Mortgage File), and if such Breach or
Defect, as the
case may be, materially and adversely affects, or is deemed hereby
to materially
and adversely affect, the value of any Mortgage Loan or any
successor REO Loan
with respect thereto or the interests of the Holders of any Class
of
Certificates (in which case such Breach or Defect shall be a
"Material Breach"
or a "Material Defect," as applicable), then Seller shall, upon
written request
of Depositor, the Trustee, the applicable Master Servicer or the
applicable
Special Servicer, not later than the earlier of 90 days from the
receipt by
Seller of such notice or discovery by Seller of such Breach or
Defect (subject
to the second succeeding paragraph, the "Initial Resolution
Period"): (i) cure
such Breach or Defect in all material respects; (ii) repurchase the
affected
Mortgage Loan at the applicable Purchase Price (as defined in the
Pooling and
Servicing Agreement); or (iii) substitute, in accordance with the
Pooling and
Servicing Agreement, one or more Qualified Substitute Mortgage
Loans (as defined
in the Pooling and Servicing Agreement) for such affected Mortgage
Loan
(provided that in no event shall any substitution occur later than
the second
anniversary of the Closing Date) and pay the applicable Master
Servicer for
deposit into the applicable Collection Account any Substitution
Shortfall Amount
(as defined in the Pooling and Servicing Agreement) in connection
therewith;
provided, however, that if (i) such Material Breach or Material
Defect is
capable of being cured but not within the Initial Resolution
Period, (ii) such
Material Breach or Material Defect does not cause the related
Mortgage Loan not
to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the
Code), (iii) Seller has commenced and is diligently proceeding with
the cure of
such Material Breach or Material Defect within the Initial
Resolution Period and
(iv) Seller has delivered to the Rating Agencies, the applicable
Master
Servicer, the applicable Special Servicer and the Trustee an
Officer's
Certificate that describes the reasons that the cure was not
effected within the
Initial Resolution Period and the actions that it proposes to take
to effect the
cure and that states that it anticipates the cure will be effected
within the
additional 90-day period, then Seller shall have an additional 90
days to cure
such Material Defect or Material Breach. If any Breach pertains to
a
representation or warranty that the related Mortgage Loan Documents
or any
particular Mortgage Loan Document requires the related Borrower to
bear the
costs and expenses associated with any particular action or matter
under such
Mortgage Loan Document(s), then Seller shall cure such Breach
within the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer
of immediately
available funds) the reasonable amount of any such costs and
expenses incurred
by the applicable Master Servicer, the applicable Special Servicer,
the Trustee
or the Trust Fund that are the basis of such Breach and have not
been reimbursed
by the related Borrower; provided, however, that in the event any
such costs and
expenses exceed $10,000, Seller shall have the option to either
repurchase the
related Mortgage Loan at the applicable Purchase Price or pay such
costs and
expenses. Except as provided in the proviso to the immediately
preceding
sentence, Seller shall remit the amount of such costs and expenses
and upon its
making such remittance, Seller shall be deemed to have cured such
Breach in all
respects. With respect to any repurchase of a Mortgage Loan
hereunder or with
respect to any substitution of one or more Qualified Substitute
Mortgage Loans
for a Mortgage Loan hereunder, (A) no such substitution may be made
in any
calendar month after the Determination Date for such month; (B)
scheduled
payments of principal and interest due with respect to the
Qualified Substitute
Mortgage Loan(s) after the Due Date in the month of substitution,
and scheduled
payments of principal and interest due with respect to each
Mortgage Loan being
repurchased or replaced after the related Cut-off Date and received
by the
applicable Master Servicer or the applicable Special Servicer on
behalf of the
Trust on or prior to the related date of repurchase or
substitution, shall be
part of the Trust Fund; and (C) scheduled payments of principal and
interest due
with respect to each such Qualified Substitute Mortgage Loan on or
prior to the
Due Date in the month of substitution, and scheduled payments of
principal and
interest due with respect to each Mortgage Loan being repurchased
or replaced
and received by the applicable Master Servicer or the applicable
Special
Servicer on behalf of the Trust after the related date of
repurchase or
substitution, shall not be part of the Trust Fund, and Seller (or,
if
applicable, any person effecting the related repurchase or
substitution in the
place of Seller) shall be entitled to receive such payments
promptly following
receipt by the applicable Master Servicer or the applicable Special
Servicer, as
applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File
to
be deemed to have a "Material Defect": (a) the absence from the
Mortgage File of
the original signed Note, unless the Mortgage File contains a
signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of
the original
signed Mortgage, unless there is included in the Mortgage File a
certified copy
of the Mortgage as recorded or as sent for recordation, together
with a
certificate stating that the original signed Mortgage was sent for
recordation,
or a copy of the Mortgage and the related recording information;
(c) the absence
from the Mortgage File of the item called for by clause (ix) of the
last
sentence of the first paragraph of Section 3 hereof; (d) the
absence from the
Mortgage File of any intervening assignments required to create an
effective
assignment to the Trustee on behalf of the Trust, unless there is
included in
the Mortgage File a certified copy of the intervening assignment as
recorded or
as sent for recordation, together with a certificate stating that
the original
intervening assignment was sent for recordation, or a copy of the
intervening
assignment and the related recording information; or (e) the
absence from the
Servicer File of any required original letter of credit, provided
that such
Defect may be cured by any substitute letter of credit or cash
reserve on behalf
of the related Borrower; or (f) the absence from the Mortgage File
of the
original or a copy of any required ground lease. In addition,
Seller shall cure
any Defect described in clause (b), (c), (e) or (f) of the
immediately preceding
sentence as required in Section 2.02(b) of the Pooling and
Servicing Agreement.
Notwithstanding anything herein to the contrary, the failure to
include a
document checklist in a Mortgage File shall in no event constitute
a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code)
shall be deemed a "Material Defect" or "Material Breach," as
applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be
90 days
following the earlier of Seller's receipt of notice (pursuant to
this Section 7
or its discovery of, such Defect or Breach (which period shall not
be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure
a
Material Breach or a Material Defect in all material respects
within the
applicable Initial Resolution Period (as extended pursuant to this
Section 7),
or if such Material Breach or Material Defect is not capable of
being so
corrected or cured within such period, then Seller shall repurchase
or
substitute for the affected Mortgage Loan as provided in this
Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for
as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a
part of a
Mortgage Group (as defined below) and (iii) the applicable Breach
or Defect does
not constitute a Breach or Defect, as the case may be, as to any
other Crossed
Mortgage Loan in such Mortgage Group (without regard to this
paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed
to
constitute a Breach or Defect, as the case may be, as to any other
Crossed
Mortgage Loan in the Mortgage Group for purposes of the above
provisions, and
Seller will be required to repurchase or substitute for such other
Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with
the provisions
of this Section 7 unless such other Crossed Mortgage Loans satisfy
the Crossed
Mortgage Loan Repurchase Criteria (as defined in the Pooling and
Servicing
Agreement) and Seller can satisfy all other criteria for
substitution or
repurchase of the affected Mortgage Loan(s) set forth in the
Pooling and
Servicing Agreement. In the event that one or more of such other
Crossed
Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase
Criteria, Seller may
elect either to repurchase or substitute for only the affected
Crossed Mortgage
Loan as to which the related Material Breach or Material Defect
exists or to
repurchase or substitute for all of the Crossed Mortgage Loans in
the related
Mortgage Group. The Seller shall be responsible for the cost of any
Appraisal
required to be obtained by the applicable Master Servicer to
determine if the
Crossed Mortgage Loan Repurchase Criteria have been satisfied, so
long as the
scope and cost of such Appraisal has been approved by Seller (such
approval not
to be unreasonably withheld). For purposes of this paragraph, a
"Mortgage Group"
is any group of Mortgage Loans identified as a Mortgage Group on
Schedule III to
this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties
(but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller
will not be
obligated to repurchase or substitute for the Mortgage Loan if the
affected
Mortgaged Property may be released pursuant to the terms of any
partial release
provisions in the related Mortgage Loan Documents and the remaining
Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the
Mortgage Loan
Documents and (i) Seller provides an opinion of counsel to the
effect that such
partial release would not cause an Adverse REMIC Event (as defined
in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be
paid) the applicable release price required under the Mortgage Loan
Documents
and, to the extent not reimbursable out of the release price
pursuant to the
related Mortgage Loan Documents, any additional amounts necessary
to cover all
reasonable out-of-pocket expenses reasonably incurred by the
applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust
Fund in
connection therewith, including any unreimbursed advances and
interest thereon
made with respect to the Mortgaged Property that is being released,
and (iii)
such cure by release of such Mortgaged Property is effected within
the time
periods specified for a cure of a Material Breach or Material
Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to
Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee,
the Trustee
as its assignee, by wire transfer of immediately available funds to
the account
designated by Depositor or the Trustee, as the case may be, and
Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in
the case of a
substitution, receipt of the Mortgage File(s) fr the related
Qualified
Substitute Mortgage Loans(s)), shall promptly release the related
Mortgage File
and Servicer File or cause them to be released, to Seller and shall
execute and
deliver such instruments of transfer or assignment as shall be
necessary to vest
in Seller the legal and beneficial ownership of such Mortgage Loan
(including
any property acquired in respect thereof or proceeds of any
insurance policy
with respect thereto) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of Seller set
forth
in this Section 7 constitute the sole remedies available to
Depositor and its
successors and assigns respecting any Breach or Defect affecting a
Mortgage
Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller
repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner
prescribed above
while the Trustee continues to hold any related Crossed Mortgage
Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to
modify upon
such repurchase or substitution, the related Mortgage Loan
Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or
substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans
still held by
the Trustee, on the other, would no longer be cross-defaulted
or
cross-collateralized with one another; provided that Seller shall
have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that
such
modification shall not cause an Adverse REMIC Event; and provided,
further, that
if such Opinion of Counsel cannot be furnished, Seller and
Depositor hereby
agree that such repurchase or substitution of only the affected
Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not
be permitted
(in which case, the Seller will be obligated to purchase or
substitute for all
Crossed Mortgage Loans in the related Mortgage Group (defined
above)). Any
reserve or other cash collateral or letters of credit securing the
subject
Crossed Mortgage Loans shall be allocated between such Mortgage
Loans in
accordance with the Mortgage Loan Documents. All other terms of the
Mortgage
Loans shall remain in full force and effect, without any
modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with
a
Defeasance. Seller shall pay all Rating Agency fees associated with
an
assumption of a Mortgage Loan to the extent such fees have not been
paid by the
related Borrower and such Borrower is not required to pay them
under the terms
of the related Mortgage Loan Documents in effect on or before the
Closing Date,
the payment of which fees shall constitute the sole remedy of any
breach by
Seller of the parenthetical in representation (xxviii)(1) set forth
on Exhibit A
hereto. Unless the Seller elects to repurchase or substitute for
such Mortgage
Loan in accordance with the second paragraph of Section 7 Seller
shall pay all
reasonable costs and expenses associated with a defeasance of a
Mortgage Loan to
the extent such costs and expenses have not been paid by the
related Borrower
and such Borrower is not required to pay them under the terms of
the related
Mortgage Loan Documents in effect on or before the Closing Date,
the payment of
which fees shall constitute the sole remedy of any breach by Seller
of
representation (liii)(F) set forth on Exhibit A hereto unless the
Seller elects
to repurchase or substitute for such Mortgage Loan in accordance
with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor.
Depositor
hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full
corporate power and authority to own its assets and conduct its
business as it
is conducted, and is duly qualified as a foreign corporation in
good standing in
all jurisdictions in which the ownership or lease of its property
or the conduct
of its business requires such qualification (except where the
failure to qualify
would not have a materially adverse effect on the consummation of
any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement
and
the performance of Depositor's obligations hereunder are within the
corporate
power of Depositor and have been duly authorized by Depositor and
neither the
execution and delivery by Depositor of this Agreement nor the
compliance by
Depositor with the provisions hereof, nor the consummation by
Depositor of the
transactions contemplated by this Agreement, will (i) conflict with
or result in
a breach of, or constitute a default under, the certificate of
incorporation or
by-laws of Depositor or, after giving effect to the consents or
taking of the
actions contemplated by clause (ii) of this paragraph (b), any of
the provisions
of any law, governmental rule, regulation, judgment, decree or
order binding on
Depositor or its properties, or any of the provisions of any
material indenture
or mortgage or any other material contract or other instrument to
which
Depositor is a party or by which it is bound or result in the
creation or
imposition of any lien, charge or encumbrance upon any of its
properties
pursuant to the terms of any such indenture, mortgage, contract or
other
instrument or (ii) require any consent of, notice to, or filing
with any person,
entity or governmental body, which has not been obtained or made by
Depositor,
except where, in any of the instances contemplated by clause (i)
above or this
clause (ii), the failure to do so will not have a material and
adverse effect on
the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor
and this Agreement constitutes a legal, valid and binding
instrument,
enforceable against Depositor in accordance with its terms,
subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency,
moratorium and other laws affecting the rights of creditors
generally and to
general principles of equity and the discretion of the court
(regardless of
whether enforcement of such remedies is considered in a proceeding
in equity or
at law) and, as to rights of indemnification hereunder, subject to
limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or
proceeding by or before any court, regulatory authority or
governmental agency
or body pending or, to the knowledge of Depositor, threatened
against Depositor
the outcome of which could be reasonably expected to materially and
adversely
affect the consummation of any transactions contemplated by this
Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth
in or made
pursuant to this Agreement, and the respective obligations of the
parties hereto
under Sections 7 and 12 of this Agreement, will remain in full
force and effect,
regardless of any investigation or statement as to the result
thereof made by or
on behalf of any party and will survive payment for the various
transfers
referred to herein and delivery of the Certificates or termination
of this
Agreement.
Section 12. Transaction Expenses. In connection with the
Closing
(and unless otherwise expressly provided herein, including, without
limitation,
in Section 12 of this Agreement), Seller shall be responsible for
the fees and
expenses of its own counsel, and Depositor and Seller agree to pay
the other
transaction expenses incurred in connection with the transactions
herein
contemplated as set forth in the Closing Statement (or, if not
covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to
reimburse
the Trustee or its designee all recording and filing fees and
expenses incurred
by the Trustee or its designee in connection with the recording or
filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement,
including
Assignments. In the event Seller elects to engage a third-party
contractor to
prepare, complete, file and record Assignments with respect to
Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract
directly with
such contractor and shall be responsible for such contractor's
compensation and
reimbursement of recording and filing fees and other reimbursable
expenses
pursuant to their agreement.
Section
14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and,
(a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed
to it at
Credit Suisse First Boston Mortgage Securities Corp., 11 Madison
Avenue, 5th
Floor, New York, New York 10010, Attention: Edmund Taylor, Telecopy
No.: (212)
743-4756 (with a copy to Casey McCutcheon, Esq., Legal &
Compliance Department,
Telecopy No.: (917) 326-8433), or such other address or telecopy
number as may
be designated by Depositor to Seller in writing, or (b) if sent to
Seller, will
be mailed, delivered or telecopied and confirmed to it at 2011
Crystal Drive,
Suite 800, Arlington, Virginia 22202, Attention: Kathleen Luzik,
Telecopy No.:
(202) 336-7800, or such other address or telecopy number as may be
designated by
Seller to Depositor in writing.
Section 15. Notice of Exchange Act Reportable Events. The
Seller
hereby agrees to deliver to the Depositor and the Trustee any
disclosure
information relating to any event reasonably determined in good
faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form
10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in
such form),
including, without limitation, the disclosure required under Items
1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best
efforts to deliver proposed disclosure language relating to any
event described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form
8-K to the
Trustee and the Depositor within one (1) business day and in any
event no later
than two (2) business days of the Seller becoming aware of such
event and shall
provide disclosure relating to any other event reasonably
determined by the
Depositor as required to be disclosed on Form 8-K, Form 10-D or
Form 10-K within
two (2) business days following the Depositor's request for such
disclosure
language. The obligation of the Seller to provide the above
referenced
disclosure materials will terminate upon notice from the Depositor
or the
Trustee that the Trustee has filed a Form 15 with respect to the
Trust Fund as
to that fiscal year in accordance with Section 11.10(a) of the
Pooling and
Servicing Agreement. The Seller hereby acknowledges that the
information to be
provided by it pursuant to this Section will be used in the
preparation of
reports meeting the reporting requirements of the Trust under
Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 16. Examination of Mortgage Files. Upon reasonable
notice,
Seller, prior to the Closing Date, will make the Mortgage Files
available to
Depositor or its agent for examination during normal business hours
at Seller's
offices or such other location as shall otherwise be agreed upon by
Depositor
and Seller. The fact that Depositor or its agent has conducted or
has failed to
conduct any partial or complete examination of the Mortgage Files
shall not
affect the rights of Depositor or the Trustee (for the benefit of
the
Certificateholders) to demand cure, repurchase, or other relief as
provided
herein.
Section 17. Successors. This Agreement shall inure to the benefit
of
and shall be binding upon Seller and Depositor and their respective
successors
and permitted assigns, and nothing expressed in this Agreement is
intended or
shall be construed to give any other Person any legal or equitable
right, remedy
or claim under or in respect of this Agreement, or any provisions
herein
contained, this Agreement and all conditions and provisions hereof
being
intended to be and being for the sole and exclusive benefit of such
designated
Persons and for the benefit of no other Person; it being understood
that (a) the
indemnities of Seller contained in that certain Indemnification
Agreement dated
August 24, 2007, among Seller, Depositor, the Initial Purchaser and
the
Underwriters, relating to, among other things, information
regarding the
Mortgage Loans in the Prospectus Supplement and the Offering
Circular, subject
to all limitations therein contained, shall also be for the benefit
of the
officers and directors of Depositor, the Underwriters and the
Initial Purchaser
and any person or persons who control Depositor, the Underwriters
and the
Initial Purchaser within the meaning of Section 15 of the
Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended, and
(b) the
rights of Depositor pursuant to this Agreement, subject to all
limitations
herein contained, including those set forth in Section 7 of this
Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders,
as may be
required to effect the purposes of the Pooling and Servicing
Agreement and, upon
such assignment, the Trustee shall succeed to such rights of
Depositor
hereunder; provided that the Trustee shall have no right to further
assign such
rights to any other Person. No owner of a Certificate issued
pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or
permitted assign
because of such ownership.
Section 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE
WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 19. Severability. If any provision of this Agreement
shall
be prohibited or invalid under applicable law, this Agreement shall
be
ineffective only to such extent, without invalidating the remainder
of this
Agreement.
Section 20. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the
other party
may, from time to time, reasonably request in order to effectuate
the purpose
and to carry out the terms of this Agreement.
Section 21. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different
counterparts), each
of which when so executed and delivered will be an original, and
all of which
together will be deemed to constitute but one and the same
instrument.
Section 22. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage
Loans by Seller
to Depositor as provided in this Agreement be, and be construed as,
a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the
intention of
the parties that such conveyance be deemed a pledge of the Mortgage
Loans by
Seller to Depositor to secure a debt or other obligation of Seller.
However, in
the event that, notwithstanding the intent of the parties, the
Mortgage Loans
are held to be property of Seller or if for any reason this
Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement
within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in
effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby
grant
from Seller to Depositor a security interest in and to all of
Seller's right,
title, and interest, whether now owned or hereafter acquired, in
and to:
(i) all accounts, contract rights (including any guarantees),
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
property described in the Mortgage Loans, including the related
Notes,
Mortgages and title, hazard and other insurance policies,
identified
on the Mortgage Loan Schedule or that constitute Replacement
Mortgage
Loans, and all distributions with respect thereto payable after
the
Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel
paper,
instruments, documents, money, deposit accounts, certificates
of
deposit,
goods, letters of credit, advices of credit and investment
property
arising from or by virtue of the disposition of, or collections
with
respect to, or insur
