Exhibit 10.4
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MORTGAGE LOAN PURCHASE AGREEMENT
between
MORGAN STANLEY MORTGAGE CAPITAL INC.
as Seller
and
BEAR STEARNS COMMERCIAL MORTGAGE SECURITIES INC.
as Purchaser
Dated as of October 18, 2006
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TABLE OF CONTENTS
1.
AGREEMENT TO
PURCHASE..................................................3
2.
CONVEYANCE OF MORTGAGE
LOANS...........................................3
3.
EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE
REVIEW................10
4.
REPRESENTATIONS AND WARRANTIES OF SELLER AND
PURCHASER................12
5.
REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER.15
6.
CLOSING...............................................................20
7. CLOSING
DOCUMENTS.....................................................21
8.
COSTS.................................................................23
9.
NOTICES...............................................................23
10. SEVERABILITY
OF PROVISIONS............................................24
11. FURTHER
ASSURANCES....................................................24
12.
SURVIVAL..............................................................24
13. GOVERNING
LAW.........................................................24
14. BENEFITS OF
MORTGAGE LOAN PURCHASE AGREEMENT..........................24
15.
MISCELLANEOUS.........................................................25
16. ENTIRE
AGREEMENT......................................................25
Exhibit 1...Mortgage Loan Schedule
Exhibit 2...Representations and Warranties
Exhibit 3...Pricing Formulation
Exhibit 4...Bill of Sale
Exhibit 5...Power of Attorney
Index of Defined Terms
Affected Loan(s)..................17
Agreement..........................2
Certificate Purchase Agreement.....2
Certificates.......................2
Closing Date.......................3
Collateral Information............10
Crossed Mortgage Loans............17
Defective Mortgage Loan...........17
Final Judicial Determination......19
Indemnification Agreement.........13
Initial Purchasers.................2
Master Servicer....................2
Material Breach...................15
Material Document Defect..........15
Memorandum.........................2
MERS...............................5
Mortgage File......................4
Mortgage Loan Schedule.............3
Mortgage Loans.....................2
Officer's Certificate..............7
Other Mortgage Loans...............2
Pooling and Servicing Agreement....2
Private Certificates...............2
Prospectus Supplement..............2
Public Certificates................2
Purchaser..........................2
Repurchased Loan..................17
Seller.............................2
Special Servicer...................2
Trust..............................2
Trustee............................2
Underwriters.......................2
Underwriting Agreement.............2
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMC LOANS)
Mortgage Loan Purchase Agreement ("Agreement"), dated as of October
18, 2006,
between Morgan Stanley Mortgage Capital Inc. ("Seller") and Bear
Stearns
Commercial Mortgage Securities Inc. ("Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created
pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be
dated as of October 1, 2006 between Purchaser, as depositor, Wells
Fargo Bank,
National Association, as master servicer (the "Master Servicer"),
ARCap
Servicing, Inc., as special servicer (the "Special Servicer"),
LaSalle Bank
National Association, as trustee and custodian (the "Trustee") and
Wells Fargo
Bank, National Association, as paying agent, certificate registrar
and
authenticating agent. In exchange for the Mortgage Loans and
certain other
mortgage loans to be purchased by Purchaser (collectively the
"Other Mortgage
Loans"), the Trust will issue to the Depositor pass-through
certificates to be
known as Bear Stearns Commercial Mortgage Securities Inc.,
Commercial Mortgage
Pass-Through Certificates, Series 2006-TOP24 (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-2, Class A-3, Class A-AB, Class A-4, Class
A-M and Class
A-J Certificates (the "Public Certificates") will be sold by
Purchaser to Morgan
Stanley & Co. Incorporated and Bear, Stearns & Co. Inc.
(the "Underwriters"),
pursuant to an Underwriting Agreement, between Purchaser and the
Underwriters,
dated October 18, 2006 (the "Underwriting Agreement"), and the
Class X, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class O, Class P, Class R-I, Class R-II and Class
R-III
Certificates (the "Private Certificates") will be sold by Purchaser
to Morgan
Stanley & Co. Incorporated and Bear, Stearns & Co. Inc.
(the "Initial
Purchasers") pursuant to a Certificate Purchase Agreement, between
Purchaser and
the Initial Purchasers, dated October 18, 2006 (the "Certificate
Purchase
Agreement"). The Underwriters will offer the Public Certificates
for sale
publicly pursuant to a Prospectus dated September 13, 2006, as
supplemented by a
Prospectus Supplement dated October 18, 2006 (together, the
"Prospectus
Supplement") and the Initial Purchasers will offer the Private
Certificates for
sale in transactions exempt from the registration requirements of
the Securities
Act of 1933 pursuant to a Private Placement Memorandum dated
October 18, 2006
(the "Memorandum").
In consideration of the mutual agreements contained herein, Seller
and Purchaser
hereby agree as follows:
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1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and Purchaser agrees to purchase, on a
servicing
released basis, the Mortgage Loans identified on the schedule (the
"Mortgage
Loan Schedule") annexed hereto as Exhibit 1, as such schedule may
be amended to
reflect the actual Mortgage Loans accepted by Purchaser pursuant to
the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is
October 1, 2006.
The 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 $1,534,723,955. The
sale of the
Mortgage Loans shall take place on October 31, 2006 or such other
date as shall
be mutually acceptable to the parties hereto (the "Closing Date").
The purchase
price to be paid by 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 Seller by wire transfer in immediately available funds on
the Closing
Date.
1.2 On the Closing Date, 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 14 hereof), and the Trustee shall succeed to such right,
title and
interest in and to the Mortgage Loans and Purchaser's rights under
this
Agreement (to the extent set forth in Section 14 hereof).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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, Seller does hereby
transfer,
assign, set over and otherwise convey to Purchaser, without
recourse, except as
specifically provided herein all the right, title and interest of
Seller, with
the understanding that a Servicing Rights Purchase and Sale
Agreement, dated
October 1, 2006, will be executed by 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, Seller shall deliver to or on behalf of the Trustee, on
behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as
described in
clause 2.2.1 hereof) for each Mortgage Loan and on or prior to the
fifth
Business Day after the Closing Date, five limited powers of
attorney
substantially in the form attached hereto as Exhibit 5 in favor of
the Trustee
and the Special Servicer to empower the Trustee and, in the event
of the failure
or incapacity of the Trustee, the Special Servicer, to submit for
recording, at
the expense of 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). Seller agrees to reasonably cooperate with the
Trustee 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
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that is 180 days following the delivery of notice of such absence
to 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, at Seller's expense, after the
periods set
forth above, provided, however, the Trustee shall not submit such
assignments
for recording if Seller produces evidence that it has sent any such
assignment
for recording and certifies that Seller is awaiting its return from
the
applicable recording office. In addition, not later than the 30th
day following
the Closing Date, Seller shall deliver to or on behalf of the
Trustee each of
the remaining documents or instruments specified in Section 2.2
hereof (with
such exceptions as are permitted by this Section 2) with respect to
each
Mortgage Loan (each, a "Mortgage File"). (Seller acknowledges that
the term
"without recourse" does not modify the duties of Seller under
Section 5 hereof.)
2.2 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 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:
2.2.1 The
original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of LaSalle Bank National Association, as
Trustee for
Bear Stearns Commercial Mortgage Securities Inc., Commercial
Mortgage
Pass-Through Certificates, Series 2006-TOP24, without recourse,
representation
or warranty" or if the original Mortgage Note is not included
therein, then a
lost note affidavit, with a copy of the Mortgage Note attached
thereto;
2.2.2 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 45th 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, 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
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;
2.2.3 The
originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon, 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 45th 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 Seller together with (i) in
the case of
a delay caused by the public recording office,
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an Officer's Certificate of Seller stating that such original
modification,
consolidation or extension agreement has been dispatched or sent to
the
appropriate public recording official for recordation or (ii) in
the case of an
original modification, consolidation or extension agreement that
has been lost
after recordation, a certification by the appropriate county
recording office
where such document is recorded that such copy is a true and
complete copy of
the original recorded modification, consolidation or extension
agreement, and
the originals of all assumption agreements, if any;
2.2.4 An
original Assignment of Mortgage for each Mortgage Loan, in form
and substance acceptable for recording, signed by the holder of
record in favor
of "LaSalle Bank National Association, as Trustee for Bear Stearns
Commercial
Mortgage Securities Inc., Commercial Mortgage Pass-Through
Certificates, Series
2006-TOP24," provided, if the related Mortgage has been recorded in
the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no such
assignments will be required to be submitted for recording or
filing and
instead, Seller shall take all actions as are necessary to cause
the Trustee to
be shown as the owner of the related Mortgage on the record of MERS
for purposes
of the system of recording transfers of beneficial ownership of
mortgages
maintained by MERS and shall deliver to the Master Servicer and the
Special
Servicer evidence confirming that the Trustee is shown as the owner
on the
record of MERS;
2.2.5
Originals of all intervening assignments of Mortgage (except
with
respect to any Mortgage that has been recorded in the name of MERS
or its
designees), 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 Seller, or in the case of an original blanket intervening
assignment of
Mortgage retained by Seller, a copy thereof certified by Seller or,
if any
original intervening assignment of Mortgage has not yet been
returned on or
prior to the 45th 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 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;
2.2.6 If
the related Assignment of Leases is separate from the Mortgage,
the original of such Assignment of Leases with evidence of
recording thereon or,
if such Assignment of Leases has not been returned on or prior to
the 45th day
following the Closing Date from the applicable public recording
office, a copy
of such Assignment of Leases certified by Seller to be a true and
complete copy
of the original Assignment of Leases submitted for recording,
together with (i)
an original of each assignment of such Assignment of Leases with
evidence of
recording thereon and showing a complete recorded chain of
assignment from the
named assignee to the holder of record, and if any such assignment
of such
Assignment of Leases has not been returned from the applicable
public recording
office, a copy of such assignment certified by Seller to be a true
and complete
copy of the original assignment submitted for recording, and (ii)
an original
assignment of such Assignment of Leases, in recordable form, signed
by the
holder of record in favor of "LaSalle Bank National Association, as
Trustee for
Bear Stearns Commercial Mortgage
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Securities Inc., Commercial Mortgage Pass-Through Certificates,
Series
2006-TOP24," which assignment may be effected in the related
Assignment of
Mortgage, provided, if the related Mortgage has been recorded in
the name of
MERS or its designee, no assignment of Assignment of Leases in
favor of the
Trustee will be required to be recorded or delivered and instead,
Seller shall
take all actions as are necessary to cause the Trustee to be shown
as the owner
of the related Mortgage on the record of MERS for purposes of the
system of
recording transfers of beneficial ownership of mortgages maintained
by MERS and
shall deliver to the Master Servicer and the Special Servicer
evidence
confirming that the Trustee is shown as the owner on the record of
MERS;
2.2.7 The
original of each guaranty, if any, constituting additional
security for the repayment of such Mortgage Loan;
2.2.8 The
original Title Insurance Policy, or in the event such original
Title Insurance Policy has not been issued, an original binder or
actual title
commitment or a copy thereof 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 binding on the title company with an
original Title
Insurance Policy to follow within 180 days of the Closing Date;
2.2.9 (A)
UCC financing statements (together with all assignments
thereof)
and (B) UCC-2 or UCC-3 financing statements to the Trustee executed
and
delivered in connection with the Mortgage Loan, provided, if the
related
Mortgage has been recorded in the name of MERS or its designee, no
such
financing statements will be required to be recorded or delivered
and instead,
Seller shall take all actions as are necessary to cause the Trustee
to be shown
as the owner of the related Mortgage on the record of MERS for
purposes of the
system of recording transfers of beneficial ownership of mortgages
maintained by
MERS and shall deliver to the Master Servicer and the Special
Servicer evidence
confirming that the Trustee is shown as the owner on the record of
MERS;
2.2.10
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;
2.2.11
Copies of any loan agreements, lock-box agreements and
intercreditor agreements (including, without limitation, any
Intercreditor
Agreement, and a copy (that is, not the original) of the mortgage
note
evidencing the related B Note), if any, related to any Mortgage
Loan;
2.2.12
Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan, 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, which
shall be held
by the 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
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that 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) or a reissued letter of credit and (c) to indemnify the
Trust for any
liabilities, charges, costs, fees or other expenses accruing from
the failure of
Seller to assign all rights to the letter of credit hereunder
including the
right and power to draw on the letter of credit). In the case of
clause (B)
above, any letter of credit held by the Primary Servicer (or Master
Servicer)
shall be held in its capacity as agent of the Trust, and if the
Primary Servicer
(or Master Servicer) sells its rights to service the applicable
Mortgage Loan,
the Primary Servicer (or Master Servicer) has agreed to assign the
applicable
letter of credit to the Trust or at the direction of the Special
Servicer to
such party as the Special Servicer may instruct, in each case, at
the expense of
the Primary Servicer (or Master Servicer). The Primary Servicer (or
Master
Servicer) has agreed to indemnify the Trust for any loss caused by
the
ineffectiveness of such assignment;
2.2.13 The
original environmental indemnity agreement, if any, related to
any Mortgage Loan;
2.2.14
Third-party management agreements 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;
2.2.15 Any
Environmental Insurance Policy; and
2.2.16 Any
affidavit and indemnification agreement.
The original of each letter of credit referred to in clause 2.2.12
above shall
be delivered to the Primary Servicer, the Master Servicer or the
Trustee (as the
case may be) within 45 days of the Closing Date. In addition, a
copy of any
ground lease shall be delivered to the Primary Servicer within 30
days of the
Closing Date. Any failure to deliver any ground lease shall
constitute a
document defect.
"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.
2.3 The Assignments of Mortgage and assignment of Assignment of
Leases referred
to in Sections 2.2.4 and 2.2.6 hereof 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, Seller
shall execute, in
accordance with Section 2.6 hereof, 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
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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 Seller to
Purchaser and from Purchaser to the Trustee on behalf of the
Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan,
any of the documents and/or instruments referred to in Sections
2.2.2, 2.2.3,
2.2.5 or 2.2.6 hereof, with evidence of recording thereon, solely
because of a
delay caused by the public recording office where such document or
instrument
has been delivered for recordation within such 45 day period, but
Seller
delivers a photocopy thereof (certified by the appropriate county
recorder's
office to be a true and complete copy of the original thereof
submitted for
recording), to the Trustee within such 45 day period, Seller shall
then deliver
within 90 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 unreasonably withheld so long as 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).
2.5 The Trustee, as assignee or transferee of Purchaser, shall be
entitled to
all scheduled payments of principal due on the Mortgage Loans 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
Seller.
2.6 Within 45 days following the Closing Date, Seller shall deliver
and
Purchaser, the Trustee or the agents of either may submit or cause
to be
submitted for recordation at the expense of Seller, in the
appropriate public
office for real property records, each assignment referred to in
clauses 2.2.4
and 2.2.6(ii) above. Within 90 days following the Closing Date,
Seller shall
deliver and Purchaser, the Trustee or the agents of either may
submit or cause
to be submitted for filing, at the expense of Seller, in the
appropriate public
office for Uniform Commercial Code financing statements, the
assignment referred
to in clause 2.2.1. If any such document or instrument is lost or
returned
unrecorded or unfiled, as the case may be, because of a defect
therein, Seller
shall prepare a substitute therefor or cure such defect, and 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.
2.7 Documents that are in the possession of Seller, its agents or
its
subcontractors that relate to the Mortgage Loans and that are not
required to be
delivered to the Trustee shall be shipped by Seller to or at the
direction of
the Master Servicer, on behalf of Purchaser, on or prior to the
75th day after
the Closing Date, in accordance with Section 3.1 of the Primary
Servicing
Agreement, if applicable.
2.8 The documents required to be delivered to the Master Servicer
(or in the
alternative, the Primary Servicer) shall include, to the extent
required to be
(and actually) delivered to Seller pursuant to the applicable
Mortgage Loan
documents, copies of the following items: the
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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 Borrower/sponsor and any guarantors,
any letters of
credit, any intercreditor agreement and any Environmental Insurance
Policies.
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 subparagraph.
2.9 Upon the sale of the Mortgage Loans by Seller to 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 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 Seller shall
immediately
vest in Purchaser and its assigns, and shall be delivered promptly
by 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.
Seller's and
Purchaser's records shall reflect the transfer of each Mortgage
Loan from Seller
to Purchaser and its assigns as a sale.
2.10 It is the express intent of the parties hereto that the
conveyance of the
Mortgage Loans and related property to Purchaser by 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
Seller to Purchaser to secure a debt or other obligation of 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 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:
2.10.1
this Agreement shall be deemed to be a security agreement; and
2.10.2 the
conveyance provided for in this Section 2 shall be deemed to be
a grant by Seller to Purchaser of a security interest in all of
Seller's right,
title, and interest, whether now owned or hereafter acquired, in
and to:
A. All accounts, general intangibles, chattel paper,
instruments,
documents,
money, deposit accounts, certificates of deposit, goods,
letters of
credit, advices of credit and investment property consisting
of,
arising from or relating to any of the following property: the
Mortgage
Loans identified on the Mortgage Loan Schedule, including the
related
Mortgage Notes, Mortgages, security agreements, and title,
hazard
and other
insurance policies, all distributions with respect thereto
payable
after the Cut-Off Date, all substitute or replacement Mortgage
Loans and
all distributions with respect thereto, and the Mortgage Files;
B. All accounts, general intangibles, chattel paper,
instruments,
documents,
money, deposit accounts, certificates of deposit, goods,
letters of
credit, advices of credit, investment property and other rights
arising
from or by virtue of the disposition of, or collections with
respect
to, or insurance proceeds payable with respect to, or claims
against
other Persons with respect to, all or any part of the
collateral
described
in clause
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(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.
2.11 The
possession by 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, Section 9-313 thereof) as in
force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes
no
representation or warranty as to the perfection of any such
security interest.
2.12
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,
Purchaser or its designee, as applicable, for the purpose of
perfecting such
security interest under applicable law.
2.13
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 this Agreement. In such case, 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, 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.
2.14
Notwithstanding anything to the contrary contained herein, and
subject to Section 2.1 hereof, Purchaser shall not be required to
purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause
2.2.1 hereof) required to be delivered to or on behalf of the
Trustee or the
Master Servicer pursuant to this Section 2 on or before the Closing
Date is not
so delivered, or is not properly executed or is defective on its
face, and
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
Purchaser's or its
successors' and assigns' rights in respect thereof pursuant to
Section 5 hereof.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the Closing
Date a
diskette acceptable to Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii)
deliver to
Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at Purchaser's headquarters in New York, and (iii)
otherwise cooperate
fully with
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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 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 Purchaser or the Trustee to cause 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 hereof.
3.2 On or prior to the Closing Date, Seller shall allow
representatives of any
of Purchaser, each Underwriter, each 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, Seller's underwriting
procedures and
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 Seller during normal business hours and
shall not be
conducted in a manner that is disruptive to Seller's normal
business operations
upon reasonable prior advance notice. In the course of such
examinations and
audits, Seller will make available to such representatives of any
of Purchaser,
each Underwriter, each 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 Seller
shall cooperate fully with any such examination and audit in all
material
respects. On or prior to the Closing Date, Seller shall provide
Purchaser with
all material information regarding Seller's financial condition and
access to
knowledgeable financial or accounting officers for the purpose of
answering
questions with respect to Seller's financial condition, financial
statements as
provided to Purchaser or other developments affecting Seller's
ability to
consummate the transactions contemplated hereby or otherwise
affecting Seller in
any material respect. Within 45 days after the Closing Date, 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.
3.3 Purchaser may exercise any of its rights hereunder through one
or more
designees or agents, provided Purchaser has provided Seller with
prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding
Seller and the
Mortgage Loans that has been delivered into 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
Purchaser is required by law or court order to disclose such
information. If
Purchaser is required to disclose in the Memorandum or the
Prospectus Supplement
confidential information regarding Seller as described in the
preceding
sentence, Purchaser shall provide to Seller a copy of the proposed
form of such
disclosure prior to making such disclosure and Seller shall
promptly, and in any
event within two Business Days, notify Purchaser of any
inaccuracies therein, in
which case Purchaser shall modify such form in a manner that
corrects such
inaccuracies. If Purchaser is required by law or court order to
disclose
confidential information regarding Seller as described in the
second preceding
sentence, Purchaser shall notify Seller and cooperate in
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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, Purchaser is compelled as
a matter of
law to disclose such information, Purchaser shall, prior to making
such
disclosure, advise and consult with Seller and its counsel as to
such disclosure
and the nature and wording of such disclosure and Purchaser shall
use reasonable
efforts to obtain confidential treatment therefor. Notwithstanding
the
foregoing, if reasonably advised by counsel that Purchaser is
required by a
regulatory agency or court order to make such disclosure
immediately, then
Purchaser shall be permitted to make such disclosure without prior
review by
Seller.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller hereby
makes for
the benefit of 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, warrants
and
covenants to Purchaser as of the date hereof that:
4.1.1
Seller is duly organized and is validly existing as a corporation
in
good standing under the laws of the State of New York. Seller has
the requisite
power and authority and legal right to own the Mortgage Loans and
to transfer
and convey the Mortgage Loans to 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.
4.1.2 This
Agreement has been duly and validly authorized, executed and
delivered by Seller, and assuming the due authorization, execution
and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal
and binding
agreement of Seller, enforceable in accordance with its terms,
except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency,
reorganization, receivership or moratorium, (B) other laws relating
to or
affecting the rights of creditors generally, (C) general equity
principles
(regardless of whether such enforcement is considered in a
proceeding in equity
or at law) or (D) public policy considerations underlying the
securities laws,
to the extent that such public policy considerations limit the
enforceability of
the provisions of this Agreement that purport to provide
indemnification from
liabilities under applicable securities laws.
4.1.3 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 Seller with this Agreement, or the consummation by
Seller of any
transaction contemplated hereby, other than (A) such qualifications
as may be
required under state securities or blue sky laws, (B) the filing or
recording of
financing statements, instruments of assignment and other similar
documents
necessary in connection with Seller's sale of the Mortgage Loans to
Purchaser,
(C) such consents, approvals, authorizations, qualifications,
registrations,
filings or notices as have been obtained and (D) where the lack of
such consent,
approval, authorization, qualification,
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registration, filing or notice would not have a material adverse
effect on the
performance by Seller under this Agreement.
4.1.4
Neither the transfer of the Mortgage Loans to Purchaser, nor
the
execution, delivery or performance of this Agreement by 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
Seller's articles
of organization or by-laws, (B) any term or provision of any
material agreement,
contract, instrument or indenture to which 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 Section 4.1.3 hereof, any law, rule, regulation,
order,
judgment, writ, injunction or decree of any court or governmental
authority
having jurisdiction over 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 Seller or 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 Seller, or
in any
material impairment of the right or ability of Seller to carry on
its business
substantially as now conducted.
4.1.5
There are no actions or proceedings against, or investigations
of,
Seller pending or, to Seller's knowledge, threatened in writing
against 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 Purchaser or the execution or delivery by,
or
enforceability against, Seller of this Agreement or have an effect
on the
financial condition of Seller that would materially and adversely
affect the
ability of Seller to perform its obligations under this
Agreement.
4.1.6 On
the Closing Date, the sale of the Mortgage Loans pursuant to
this
Agreement will effect a transfer by Seller of all of its right,
title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To
Seller's knowledge, Seller's Information (as defined in that
certain indemnification agreement, dated October 18, 2006, between
Seller,
Purchaser, the Underwriters and the Initial Purchasers (the
"Indemnification
Agreement")) 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.
Notwithstanding
anything contained herein to the contrary, this subparagraph 4.1.7
shall run
exclusively to the benefit of Purchaser and no other party.
4.1.8 The
Seller has complied with the disclosure requirements of
Regulation AB that arise from its role as "originator" and
"sponsor" in
connection with the issuance of the Public Certificates.
4.1.9 For
so long as the Trust is subject to the reporting requirements
of
the Exchange Act, the Seller shall provide the Purchaser (or with
respect to any
Serviced Companion Mortgage
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Loan that is deposited into an Other Securitization, the depositor
in such Other
Securitization) 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 XV and Schedule XVI of the Pooling and Servicing Agreement
within the
time periods and in accordance with the provisions set forth in the
Pooling and
Servicing Agreement.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that
the foregoing representations and warranties and those set forth on
Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, will be
true and correct in all material respects on and as of the Closing
Date with the
same effect as if made on the Closing Date.
Each of the representations, warranties and covenants made by
Seller pursuant to
this Section 4.1 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.
4.2 To induce Seller to enter into this Agreement, Purchaser hereby
represents
and warrants to Seller as of the date hereof:
4.2.1
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.
4.2.2
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. 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 Seller, constitutes
the valid and
binding obligation of Purchaser, enforceable against it in
accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency,
reorganization, moratorium and other similar laws affecting the
enforcement of
creditors' rights generally and by general principles of equity,
regardless of
whether such enforcement is considered in a proceeding in equity or
at law.
4.2.3 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 Purchaser with this Agreement, or the consummation by
Purchaser of
any transaction contemplated hereby that has not been obtained or
made by
Purchaser.
4.2.4
Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by Purchaser will
violate 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 Purchaser is a party or that may be applicable
to Purchaser
or its assets.
4.2.5
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,
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injunction, order or decree of any court, or order or regulation of
any federal,
state or municipal government agency having jurisdiction over
Purchaser or its
assets, which violation could materially and adversely affect the
condition
(financial or otherwise) or the operation of Purchaser or its
assets or could
materially and adversely affect its ability to perform its
obligations and
duties hereunder.
4.2.6
There are no actions or proceedings against, or investigations
of,
Purchaser pending or, to Purchaser's knowledge, threatened against
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
Purchaser that would materially and adversely affect the ability of
Purchaser to
perform its obligation under this Agreement.
4.2.7
Purchaser has not dealt with any broker, investment banker, agent
or
other person, other than Seller, the Underwriters, the Initial
Purchasers 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 Seller to enter into this Agreement, Purchaser hereby
covenants that
the foregoing representations and warranties will be true and
correct in all
material respects on and as of the Closing Date with the same
effect as if made
on the Closing Date.
Each of the representations and warranties made by Purchaser
pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER.
5.1 It is hereby acknowledged that Seller shall make for the
benefit of the
Trustee on behalf of the holders of the Certificates, whether
directly or by way
of 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).
5.2 It is hereby further acknowledged that if any document required
to be
delivered to the Trustee pursuant to Section 2 hereof is not
delivered as and
when required, 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
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 the
party discovering such breach or defect determines that either (i)
the defect or
breach materially and adversely affects the interests of the
holders of the
Certificates in the related Mortgage Loan or (ii) both (A) the
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 (any such defect described in the preceding clause (i) or
(ii), a "Material
Document Defect" and any such breach described in the preceding
clause (i) or
(ii), a "Material Breach"), the party determining that such
Material Document
Defect or Material Breach exists shall promptly notify,
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in writing, the other parties; provided that any breach of the
representation
and warranty contained in paragraph (41) 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 determining (or becoming aware of
another
party's determination) that any such Material Document Defect or
Material Breach
exists (which determination shall, absent evidence to the contrary,
be presumed
to be no earlier than three Business Days prior to delivery of
the
