EXHIBIT 10.2
Form of Mortgage Loan
Purchase Agreement
for Commercial Mortgage
Pass-Through Certificates
MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
________, 20__, between Morgan Stanley Mortgage Capital Inc. (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 ________, 200__, between the
Purchaser, as
depositor, [Name of Master Servicer], as Master Servicer, [Name of
Special
Servicer], as Special Servicer and [Name of Trustee], as Trustee,
Paying Agent
and Certificate Registrar. 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 20__-_____ (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-3-1FL],
Class
[A-3-1], Class [A-3-2], Class [A-AB], Class [A-4A], Class [A-4B],
Class [X-2],
Class [A-J], Class [B], Class [C] and Class [D] Certificates (the
"Public
Certificates") will be sold by the Purchaser to [Morgan Stanley
& Co.
Incorporated] [and] [names of other underwriters]. (collectively,
the
"Underwriters"), pursuant to an Underwriting Agreement, between the
Purchaser
and the Underwriters, dated ________, 20___ (the "Underwriting
Agreement"), and
the Class [X-1], Class [X-Y], Class [E], Class [F], Class [G],
Class [H], Class
[J], Class [K], Class [L], Class [M], Class [N], Class [O], Class
[P], 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] (the "Initial Purchaser") pursuant to a
Certificate Purchase
Agreement, between the Purchaser and the Initial Purchaser, dated
________,
20___ (the "Certificate Purchase Agreement"). The Underwriters will
offer the
Public Certificates for sale publicly pursuant to a Prospectus
dated ________,
20___, as supplemented by a Prospectus Supplement dated ________,
20___
(together, the "Prospectus Supplement"), and the Initial Purchaser
will offer
the Private Certificates (other than the 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 ________, 20___ (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
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schedule (the "Mortgage Loan Schedule") annexed hereto as Exhibit
1, as such
schedule may be amended to reflect the actual Mortgage Loans
accepted by the
Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each
Mortgage Loan is such Mortgage Loan's Due Date in the month of
________ 20___.
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
$____________. The sale of the Mortgage Loans shall take place on
________,
20___ or such other date as shall be mutually acceptable to the
parties hereto
(the "Closing Date"). The purchase price to be paid by the
Purchaser for the
Mortgage Loans shall equal the amount set forth as such purchase
price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by
wire
transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right,
title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed
to such
right, title and interest in and to the Mortgage Loans and the
Purchaser's
rights under this Agreement (to the extent set forth in Section
15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to receipt of the consideration referred to in
Section 1
hereof and the satisfaction of the conditions specified in Sections
6 and 7
hereof, the Seller does hereby transfer, assign, set over and
otherwise convey
to the Purchaser, without recourse, all the right, title and
interest of the
Seller, with the understanding that a Servicing Rights Purchase and
Sale
Agreement, dated ________, 20___, 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 or 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, limited
powers of
attorney substantially in the form attached hereto as Exhibit 5 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
Trustee shall submit such documents for recording, at the Seller's
expense,
after the periods
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set forth above; provided, however, the Trustee shall not submit
such
assignments for recording if the Seller produces evidence that it
has sent any
such assignment for recording and certifies that the Seller is
awaiting its
return from the applicable recording office. In addition, not later
than the
30th day following the Closing Date, the Seller shall deliver to or
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 or on behalf of the Trustee in
escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage
Files shall
be released from escrow upon closing of the sale of the Mortgage
Loans and
payments of the purchase price therefor as contemplated hereby. The
Mortgage
File for each Mortgage Loan shall contain the following
documents:
(a) The original Mortgage Note bearing all intervening
endorsements,
endorsed in blank or endorsed "Pay to the order of _______________,
as Trustee
for Morgan Stanley Capital I Inc., Commercial Mortgage
Pass-Through
Certificates, Series 20___-_____, without recourse, representation
or warranty"
or if the original Mortgage Note is not included therein, then a
lost note
affidavit and indemnity, with a copy of the Mortgage Note attached
thereto;
(b) The original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a power of attorney, a
certified true
copy of the power of attorney certified by the public recorder's
office, with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed), or certified by a title
insurance
company or escrow company to be a true copy thereof; provided that
if such
original Mortgage cannot be delivered with evidence of recording
thereon on or
prior to the 90th day following the Closing Date because of a delay
caused by
the public recording office where such original Mortgage has been
delivered for
recordation or because such original Mortgage has been lost, the
Seller shall
deliver or cause to be delivered to the Trustee a true and correct
copy of such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate (as defined below) of
the Seller
stating that such original Mortgage has been sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original Mortgage
that has been lost after recordation, a certification by the
appropriate county
recording office where such Mortgage is recorded that such copy is
a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon (if applicable) or if any such
original
modification, consolidation or extension agreement has been
delivered to the
appropriate recording office for recordation and either has not yet
been
returned on or prior to the 90th day following the Closing Date
with evidence of
recordation thereon or has been lost after recordation, a true copy
of such
modification, consolidation or extension certified by the Seller
together with
(i) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the Seller stating that such original modification,
consolidation
or extension agreement has been dispatched or sent to the
appropriate public
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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 "______________, as Trustee for Morgan Stanley Capital I
Inc.,
Commercial Mortgage Pass-Through Certificates, Series
20___-_____";
(e) Originals of all intervening assignments of Mortgage, if
any,
with evidence of recording thereon or, if such original assignments
of Mortgage
have been delivered to the appropriate recorder's office for
recordation,
certified true copies of such assignments of Mortgage certified by
the Seller,
or in the case of an original blanket intervening assignment of
Mortgage
retained by the Seller, a copy thereof certified by the Seller or,
if any
original intervening assignment of Mortgage has not yet been
returned on or
prior to the 90th day following the Closing Date from the
applicable recording
office or has been lost, a true and correct copy thereof, together
with (i) in
the case of a delay caused by the public recording office, an
Officer's
Certificate of the Seller stating that such original intervening
assignment of
Mortgage has been sent to the appropriate public recording official
for
recordation or (ii) in the case of an original intervening
assignment of
Mortgage that has been lost after recordation, a certification by
the
appropriate county recording office where such assignment is
recorded that such
copy is a true and complete copy of the original recorded
intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence
of recording
thereon or certified by a title insurance company or escrow company
to be a true
copy thereof; provided that if such Assignment of Leases has not
been returned
on or prior to the 90th day following the Closing Date because of a
delay caused
by the applicable public recording office where such Assignment of
Leases has
been delivered for recordation or because such original Assignment
of Leases has
been lost, the Seller shall deliver or cause to be delivered to the
Trustee a
true and correct copy of such Assignment of Leases submitted for
recording,
together with, (i) in the case of a delay caused by the public
recording office,
an Officer's Certificate (as defined below) of the Seller stating
that such
Assignment of Leases has been sent to the appropriate public
recording official
for recordation or (ii) in the case of an original Assignment of
Leases that has
been lost after recordation, a certification by the appropriate
county recording
office where such Assignment of Leases is recorded that such copy
is a true and
complete copy of the original recorded Assignment of Leases, in
each case
together with an original assignment of such Assignment of Leases,
in recordable
form (except for recording information not yet available if the
instrument being
recorded has not been returned from the applicable recording
office), signed by
the holder of record in favor of "______________, as Trustee for
Morgan Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series
20___-_____," which assignment may be effected in the related
Assignment of
Mortgage;
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(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 on
behalf of the Trust with a copy to be held by the Primary Servicer
(or the
Master Servicer), and applied, drawn, reduced or released in
accordance with
documents evidencing or securing the applicable Mortgage Loan, the
Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the
original of
each letter of credit, if any, constituting additional collateral
for such
Mortgage Loan (other than letters of credit representing tenant
security
deposits which have been collaterally assigned to the lender),
which shall be
held by the applicable Primary Servicer (or the Master Servicer) on
behalf of
the Trustee, with a copy to be held by the Trustee, and applied,
drawn, reduced
or released in accordance with documents evidencing or securing the
applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement (it being understood that the Seller has agreed (a) that
the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or
before the
Closing Date, the bank issuing the letter of credit that the letter
of credit
and the proceeds thereof belong to the Trust, and to use reasonable
efforts to
obtain within 30 days (but in any event to obtain within 90 days)
following the
Closing Date, an acknowledgement thereof by the bank (with a copy
of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the
Trust for
any liabilities, charges, costs, fees or other expenses accruing
from the
failure of the Seller to assign the letter of credit hereunder). In
the case of
clause (B) above, any letter of credit held by the applicable
Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the
Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its
rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or
Master
Servicer) has agreed to assign the
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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 applicable Primary Servicer (or Master
Servicer). The
applicable Primary Servicer (or Master Servicer) has agreed to
indemnify the
Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for
all
hotels and for such other Mortgaged Properties securing Mortgage
Loans with a
Cut-Off Date principal balance equal to or greater than
$20,000,000;
(o) The original of any Environmental Insurance Policy or, if
the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor
of the lender;
(q) With respect to hospitality properties, a copy of any
franchise
agreement, franchise comfort letter and applicable assignment or
transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one
or
more of the Chairman of the Board, any Vice Chairman, the
President, any Senior
Vice President, any Vice President, any Assistant Vice President,
any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and
assignment of Assignment of Leases referred to in clauses (d), (e)
and (f) may
be in the form of a single instrument assigning the Mortgage and
the Assignment
of Leases to the extent permitted by applicable law. To avoid the
unnecessary
expense and administrative inconvenience associated with the
execution and
recording or filing of multiple assignments of mortgages,
assignments of leases
(to the extent separate from the mortgages) and assignments of UCC
financing
statements, the Seller shall execute, in accordance with the third
succeeding
paragraph, the assignments of mortgages, the assignments of leases
(to the
extent separate from the mortgages) and the assignments of UCC
financing
statements relating to the Mortgage Loans naming the Trustee on
behalf of the
Certificateholders as assignee. Notwithstanding the fact that such
assignments
of mortgages, assignments of leases (to the extent separate from
the assignments
of mortgages) and assignments of UCC financing statements shall
name the Trustee
on behalf of the Certificateholders as the assignee, the parties
hereto
acknowledge and agree that the Mortgage Loans shall for all
purposes be deemed
to have been transferred from the Seller to the Purchaser and from
the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, any of the documents and/or instruments referred to
in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because
of a delay
caused by the public recording office where such document or
instrument has been
delivered for recordation within such 90 day period, but the Seller
delivers a
photocopy thereof (to the extent available, certified by the
appropriate county
recorder's office to be a true and complete copy of the original
thereof
submitted for recording or, if such certification is not available,
together
with an Officer's Certificate of the Seller stating
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that such document has been sent to the appropriate public
recording official
for recordation), to 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 Trustee may
consent to,
which consent shall not be withheld so long as the Seller is, as
certified in
writing to the Trustee no less often than monthly, in good faith
attempting to
obtain from the appropriate county recorder's office such original
or
photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall
be
entitled to all scheduled payments of principal due thereon after
the Cut-Off
Date, all other payments of principal collected after the Cut-Off
Date (other
than scheduled payments of principal due on or before the Cut-Off
Date), and all
payments of interest on the Mortgage Loans allocable to the period
commencing on
the Cut-Off Date. All scheduled payments of principal and interest
due on or
before the Cut-Off Date and collected after the Cut-Off Date shall
belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver
and the Purchaser, the Trustee or the agents of either may submit
or cause to be
submitted for recordation at the expense of the Seller, in the
appropriate
public office for real property records, each assignment referred
to in clauses
(d) and (f)(ii) above (with recording information in blank if such
information
is not yet available). Within 15 days following the Closing Date,
the Seller
shall deliver and the Purchaser, the Trustee or the agents of
either may submit
or cause to be submitted for filing, at the expense of the Seller,
in the
appropriate public office for Uniform Commercial Code financing
statements, the
assignment referred to in clause (i) above. If any such document or
instrument
is lost or returned unrecorded or unfiled, as the case may be,
because of a
defect therein, the Seller shall prepare a substitute therefor or
cure such
defect, and the Seller shall, at its own expense (except in the
case of a
document or instrument that is lost by the Trustee), record or
file, as the case
may be, and deliver such document or instrument in accordance with
this Section
2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise
agreement
and each Mortgage Loan secured by a Mortgaged Property with respect
to which a
letter of credit is in place, the Seller shall provide a notice on
or prior to
the date that is thirty (30) days after the Closing Date to the
franchisor or
the issuing financial institution, as applicable, of the transfer
of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing
Agreement, and
inform such parties that any notices to the Mortgagor's lender
pursuant to such
franchise agreement or letter of credit should thereafter be
forwarded to the
Master Servicer and, with respect to each franchise agreement,
provide a
franchise comfort letter to the franchisor on or prior to the date
that is
thirty (30) days after the Closing Date. 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 or the applicable Primary
Servicer, the
Seller will draw on such letter of credit as directed by the Master
Servicer or
such Primary Servicer in such notice to the extent the Seller has
the right to
do so.
Documents that are in the possession of the Seller, its agents
or
its subcontractors that relate to the servicing of any Mortgage
Loans and that
are not required to be a part of the Mortgage File and are
reasonably necessary
for the ongoing administration and/or servicing of the applicable
Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at
the
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direction of the Master Servicer, on behalf of the Purchaser, on or
prior to the
75th day after the Closing Date, in accordance with the Primary
Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be
(and
actually) delivered to the Seller pursuant to the applicable
Mortgage Loan
documents, copies of the following items: the Mortgage Note, any
Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity
agreement, any loan agreement, the insurance policies or
certificates, as
applicable, the property inspection reports, any financial
statements on the
property, any escrow analysis, the tax bills, the Appraisal, the
environmental
report, the engineering report, the asset summary, financial
information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreements and any Environmental Insurance Policies; provided,
however, the
Seller shall not be required to deliver any draft documents,
attorney-client
privileged communications, internal correspondence or credit
analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be
deemed a
delivery to the Master Servicer and satisfy Seller's obligations
under this
sub-paragraph. Each of the foregoing items shall be delivered by
the Seller in
electronic form, to the extent such document is available in such
form and such
form is reasonably acceptable to the 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
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. 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
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relating to any of the following property: the Mortgage Loans
identified on the Mortgage Loan Schedule, including the related
Mortgage Notes, Mortgages, security agreements, and title,
hazard
and other insurance policies, all distributions with respect
thereto
payable after the Cut-Off Date, all substitute or replacement
Mortgage Loans and all distributions with respect thereto, and
the
Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit,
investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other
Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit,
advices of
credit, instruments, money, documents, chattel paper or
certificated securities
shall be deemed to be possession by the secured party or possession
by a
purchaser for purposes of perfecting the security interest pursuant
to the
Uniform Commercial Code (including, without limitation, Sections
9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding
the
foregoing, the Seller makes no representation or warranty as to the
perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments,
receipts, or confirmations from persons holding such property,
shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from,
securities intermediaries, bailees or agents of, or Persons holding
for, the
Purchaser or its designee, as applicable, for the purpose of
perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take
such reasonable actions as may be necessary to ensure that, if this
Agreement
were deemed to create a security interest in the property described
above, such
security interest would be deemed to be a perfected security
interest of first
priority under applicable law and will be maintained as such
throughout the term
of the Agreement. In such case, the Seller shall file all filings
necessary to
maintain the effectiveness of any original filings necessary under
the Uniform
Commercial Code as in effect in any jurisdiction to perfect such
security
interest in such property. In connection herewith, the Purchaser
shall have all
of the rights and remedies of a secured party and creditor under
the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to
purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause (a)
above) or lost note affidavit and indemnity required to be
delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or
before the Closing Date is not so delivered, or is not properly
executed or is
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<PAGE>
defective on its face, and the Purchaser's acceptance of the
related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of
such omission or
defect or of the Purchaser's or its successors' and assigns' rights
in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall (i) deliver to the Purchaser on or before the
Closing Date a
diskette acceptable to the Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by the Purchaser,
(ii) deliver to
the Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at the Purchaser's headquarters in New York, and (iii)
otherwise
cooperate fully with the Purchaser in its examination of the credit
files,
underwriting documentation and Mortgage Files for the Mortgage
Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser
has
conducted or has failed to conduct any partial or complete
examination of the
credit files, underwriting documentation or Mortgage Files for the
Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to
cause the
Seller to cure any Material Document Defect or Material Breach
(each as defined
below), or to repurchase or replace the defective Mortgage Loans
pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the
Initial
Purchaser, the Trustee, the 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 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 or Primary
Servicer, if
applicable, with any additional information identified by the
Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA
Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one
or more designees or agents; provided the Purchaser has provided
the Seller with
prior notice of the identity of such designee or agent.
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<PAGE>
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
corporation in good standing under the laws of New York. The Seller
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
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<PAGE>
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.
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<PAGE>
(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 Seller Information (as
defined
in that
certain indemnification agreement, dated as of ________, 20___,
between
the Seller, the Purchaser, the Underwriters and the Initial
Purchaser
(the "Indemnification Agreement")) relating to the Mortgage
Loans did
not and 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
(when read together with the Prospectus Supplement, in the case
of Public
Certificates, or when read together with the Memorandum, in the
case of
the Private Certificates). Notwithstanding anything contained
herein to
the contrary, this subparagraph (vii) shall run exclusively to
the benefit of the
Purchaser and no other party.
(viii) The Seller has complied with the disclosure requirements
of
Regulation
AB that arise from its role as "seller" and "sponsor" in
connection
with the issuance of the Public Certificates.
(ix) For so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the
Purchaser
and the
Paying Agent with any Additional Form 10-D Disclosure and any
Additional
Form 10-K Disclosure set forth next to the Seller's name on
Schedule V
and Schedule VI of the Pooling and Servicing Agreement within
the time
periods set forth in the Pooling and Servicing 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.
(b) 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. 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,
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<PAGE>
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.
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<PAGE>
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, whether
directly or 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 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 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 Materia
