MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of December 1, 2006
(this "Agreement"), is entered into between PNC Bank, National
Association (the
"Seller") and Merrill Lynch Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community
mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to
deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other
Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial
ownership of which
will be evidenced by multiple classes of mortgage pass-through
certificates (the
"Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The
Trust Fund
will be created and the Certificates will be issued pursuant to a
Pooling and
Servicing Agreement, dated as of December 1, 2006 (the "Pooling and
Servicing
Agreement"), among the Purchaser as depositor, Midland Loan
Services, Inc. and
Wells Fargo Bank, National Association as master servicers (each,
in such
capacity, a "Master Servicer"), LNR Partners, Inc. as special
servicer (the
"Special Servicer") and LaSalle Bank National Association as
trustee (the
"Trustee"). Capitalized terms used but not defined herein
(including the
schedules attached hereto) have the respective meanings set forth
in the Pooling
and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of December 1, 2006 (the "Underwriting Agreement"), with Merrill
Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") for itself and as
representative
of Countrywide Securities Corporation ("Countrywide Securities"),
IXIS
Securities North America Inc. ("IXIS Securities"), PNC Capital
Markets LLC ("PNC
Capital"), Credit Suisse Securities (USA) LLC ("Credit Suisse") and
Deutsche
Bank Securities Inc. ("DBSI"); Merrill Lynch, Countrywide
Securities, IXIS
Securities, PNC Capital, Credit Suisse and DBSI, collectively, in
such capacity,
the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of
the Certificates that are to be registered under the Securities Act
of 1933, as
amended (such Certificates, the "Publicly-Offered Certificates").
The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of
December 1,
2006 (the "Certificate Purchase Agreement"), with Merrill Lynch for
itself and
as representative of Countrywide Securities (together in such
capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the
Initial Purchasers
all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have
an aggregate principal balance of
$222,104,469 (the "PNC Mortgage Loan Balance") (subject to a
variance of plus or
minus 5.0%) 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 such
payments are
received. The PNC Mortgage Loan Balance, together with the
aggregate principal
balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect
to any payments due on or before such date, whether or not such
payments are
received), is expected to equal an aggregate principal balance (the
"Cut-off
Date Pool Balance") of $4,522,709,155 (subject to a variance of
plus or minus
5%). The purchase and sale of the Mortgage Loans shall take place
on December
12, 2006 or such other date as shall be mutually acceptable to the
parties to
this Agreement (the "Closing Date"). The consideration (the
"Purchase
Consideration") for the Mortgage Loans shall be equal to (i)
105.1998% of the
PNC Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$409,993, which
amount represents the amount of interest accrued on the PNC
Mortgage Loan
Balance, as agreed to by the Seller and the Purchaser.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the
Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a)
Effective as of the Closing Date, subject only to the
Seller's receipt of the Purchase Consideration and the satisfaction
or waiver of
the conditions to closing set forth in Section 5 of this Agreement
(which
conditions shall be deemed to have been satisfied or waived upon
the Seller's
receipt of the Purchase Consideration), the Seller does hereby
sell, transfer,
assign, set over and otherwise convey to the Purchaser, without
recourse (except
as set forth in this Agreement), all the right, title and interest
of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of such
date, on a servicing released basis (subject to certain agreements
regarding
servicing as provided in the Servicing Rights Purchase Agreement
(as defined in
Section 6(a)(iii) hereof)), together with all of the Seller's
right, title and
interest in and to the proceeds of any related title, hazard,
primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may
be amended,
shall conform to the requirements set forth in this Agreement and
the Pooling
and Servicing Agreement.
(b)
The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the
Cut-off Date, and
all other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date but collected after the Cut-off Date,
and
recoveries of principal and interest collected on or before the
Cut-off Date
(only in respect of principal and interest on the Mortgage Loans
due on or
before the Cut-off Date and principal prepayments thereon), shall
belong to, and
be promptly remitted to, the Seller.
(c)
The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee (i)
on or before
the Closing Date, the documents and instruments specified below
with respect to
each Mortgage Loan that are Specially Designated Mortgage Loan
Documents and
(ii) on or before the date that is 30 days after the Closing Date,
the remaining
documents and instruments specified below that are not Specially
Designated
Mortgage Loan Documents with respect to each Mortgage Loan (the
documents and
2
instruments specified below and referred to in clauses (i) and (ii)
preceding,
collectively, a "Mortgage File"). All Mortgage Files so delivered
will be held
by the Trustee in escrow for the benefit of the Seller at all times
prior to the
Closing Date. The Mortgage File with respect to each Mortgage Loan
that is a
Serviced Trust Mortgage Loan shall contain the following documents:
(i)
the original executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution
thereof (or
a lost note affidavit and indemnity with a copy of such Mortgage
Note
attached thereto), together with any and all intervening
endorsements
thereon, endorsed on its face or by allonge attached thereto
(without
recourse, representation or warranty, express or implied) to the
order of
LaSalle Bank National Association, as trustee for the registered
holders
of ML-CFC Commercial Mortgage Trust 2006-4, Commercial Mortgage
Pass-Through Certificates, Series 2006-4, or in blank;
(ii)
an original or copy of the Mortgage, together with originals
or copies of any and all intervening assignments thereof, in each
case
(unless not yet returned by the applicable recording office) with
evidence
of recording indicated thereon or certified by the applicable
recording
office;
(iii)
an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof,
in
each case (unless not yet returned by the applicable recording
office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv)
an original executed assignment, in recordable form (except
for completion of the assignee's name and address (if the
assignment is
delivered in blank) and any missing recording information or a
certified
copy of that assignment as sent for recording), of (a) the
Mortgage, (b)
any related Assignment of Leases (if such item is a document
separate from
the Mortgage) and (c) any other recorded document relating to the
subject
Mortgage Loan otherwise included in the Mortgage File, in favor of
LaSalle
Bank National Association, as trustee for the registered holders of
ML-CFC
Commercial Mortgage Trust 2006-4, Commercial Mortgage Pass-Through
Certificates, Series 2006-4;
(v)
an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant
to
clause (iv) above) in favor of LaSalle Bank National Association,
as
trustee for the registered holders of ML-CFC Commercial Mortgage
Trust
2006-4, Commercial Mortgage Pass-Through Certificates, Series
2006-4 [(or,
in the case of a Loan Combination, in favor of LaSalle Bank
National
Association, as trustee for the registered holders of ML-CFC
Commercial
Mortgage Trust 2006-4, Commercial Mortgage Pass-Through
Certificates,
Series 2006-4;
(vi)
originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been
assumed;
3
(vii)
the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which
may be a pro forma policy or a marked version of the policy that
has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow
instructions
executed by an authorized representative of the title company) to
issue
such title insurance policy;
(viii)
any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but
only
to the extent the Seller had possession of such UCC Financing
Statements
prior to the Closing Date) and, if there is an effective UCC
Financing
Statement in favor of the Seller on record with the applicable
public
office for UCC Financing Statements, a UCC Financing Statement
assignment,
in form suitable for filing in favor of LaSalle Bank National
Association,
as trustee for the registered holders of ML-CFC Commercial Mortgage
Trust
2006-4, Commercial Mortgage Pass-Through Certificates, Series
2006-4, as
assignee;
(ix)
an original or a copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x)
an original or a copy of any intercreditor agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor;
(xi)
an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management
agreement, any
agreed upon procedures letter, any lockbox or cash management
agreements,
any environmental reports or any letter of credit (which letter of
credit
shall not be delivered in original from to the Trustee, but rather
to the
applicable Master Servicer), in each case relating to the subject
Mortgage
Loan; and
(xii)
with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or
franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject
to
Section 2.01(c) of the Pooling and Servicing Agreement.
The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan,
promptly (and in
any event within 180 days following the later of the Closing Date
and the
delivery of each Mortgage, Assignment of Leases, recordable
document and UCC
Financing Statement to the Trustee) cause to be submitted for
recording or
filing, as the case may be, in the appropriate public office for
real property
records or UCC Financing Statements, each assignment of Mortgage,
assignment of
Assignment of Leases and any other recordable documents relating to
each such
Mortgage Loan in favor of the Trustee that is referred to in clause
(iv) of the
definition of "Mortgage File" and each UCC Financing Statement
assignment in
favor of the Trustee that is referred to in clause (viii) of the
definition of
"Mortgage File." Each such assignment and UCC Financing Statement
assignment
shall reflect
4
that the recorded original should be returned by the public
recording office to
the Trustee following recording, and each such assignment and UCC
Financing
Statement assignment shall reflect that the file copy thereof
should be returned
to the Trustee following filing; provided, that in those instances
where the
public recording office retains the original assignment of Mortgage
or
assignment of Assignment of Leases, the Recording/Filing Agent
shall obtain
therefrom a certified copy of the recorded original. If any such
document or
instrument is lost or returned unrecorded or unfiled, as the case
may be,
because of a defect therein, then the Seller shall prepare a
substitute therefor
or cure such defect or cause such to be done, as the case may be,
and the Seller
shall deliver such substitute or corrected document or instrument
to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling
and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding
paragraph,
including, without limitation, any costs and expenses that may be
incurred by
the Trustee in connection with any such recording, filing or
delivery performed
by the Trustee at the Seller's request and the fees of the
Recording/Filing
Agent.
(d)
All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loans,
(b) are
reasonably necessary for the ongoing administration and/or
servicing of such
Mortgage Loans by the applicable Master Servicer in connection with
its duties
under the Pooling and Servicing Agreement, and (c) are in the
possession or
under the control of the Seller, together with all unapplied escrow
amounts and
reserve amounts in the possession or under the control of the
Seller that relate
to the Mortgage Loans, shall be delivered or caused to be delivered
by the
Seller to the applicable Master Servicer (or, at the direction of
such Master
Servicer, to the appropriate sub-servicer); provided that the
Seller shall not
be required to deliver any draft documents, privileged or other
communications,
credit underwriting, legal or other due diligence analyses, credit
committee
briefs or memoranda or other internal approval documents or data or
internal
worksheets, memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Trustee, for
its administrative convenience in reviewing the Mortgage Files, a
mortgage loan
checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a
complete
mortgage loan checklist shall not give rise to any liability
whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other
person because the
delivery of the mortgage loan checklist is being provided to the
Trustee solely
for its administrative convenience.
(e)
The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the
benefit of any
letters of credit in the name of the Seller, which secure any
Mortgage Loan.
(f)
On or before the Closing Date, the Seller shall provide to
the applicable Master Servicer, the initial data (as of the Cut-off
Date or the
most recent earlier date for which such data is available)
contemplated by the
CMSA Loan Setup File, the CMSA Loan Periodic Update File, the CMSA
Operating
Statement Analysis Report and the CMSA Property File.
5
SECTION 3. Representations, Warranties and Covenants of Seller.
(a)
The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i)
The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States
and the Seller has taken all necessary corporate action to
authorize the
execution, delivery and performance of this Agreement by it, and
has the
power and authority to execute, deliver and perform this Agreement
and all
transactions contemplated hereby.
(ii)
This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the
Seller's
directors and officers has been taken in connection therewith, 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 against the Seller in
accordance with
its terms, except as such enforcement may be limited by (A) laws
relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, conservatorship or moratorium, (B) other laws
relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in
a
proceeding in equity or at law).
(iii)
The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of
incorporation
or bylaws, (B) violate any law or regulation or any administrative
decree
or order to which it is subject if compliance therewith is
necessary (1)
to ensure the enforceability of this Agreement or (2) for the
Seller to
perform its duties and obligations under this Agreement, or (C)
constitute
a default (or an event which, with notice or lapse of time, or
both, would
constitute a default) under, or result in the breach of, any
material
contract, agreement or other instrument to which the Seller is a
party or
by which the Seller is bound, which default might have consequences
that
would, in the Seller's reasonable and good faith judgment,
materially and
adversely affect the condition (financial or other) or operations
of the
Seller or its properties or materially and adversely affect its
performance hereunder.
(iv)
The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default might
have consequences that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the condition (financial
or
other) or operations of the Seller or its properties or materially
and
adversely affect its performance hereunder.
(v)
The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any
other
corporate restriction or any judgment, order, writ, injunction,
decree,
law or regulation that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the ability of the Seller
to
perform its obligations under this Agreement or that requires the
consent
of any
6
third person to the execution of this Agreement or the performance
by the
Seller of its obligations under this Agreement (except to the
extent such
consent has been obtained).
(vi)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by
this
Agreement except as have previously been obtained, and no bulk sale
law
applies to such transactions.
(vii)
None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution,
delivery
or performance of this Agreement by the Seller, results or will
result in
the creation or imposition of any lien on any of the Seller's
assets or
property that would have a material adverse effect upon the
Seller's
ability to perform its duties and obligations under this Agreement
or
materially impair the ability of the Purchaser to realize on the
Mortgage
Loans.
(viii)
There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the
Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and
reasonable
judgment, prohibit its entering into this Agreement or materially
and
adversely affect the validity of this Agreement or the performance
by the
Seller of its obligations under this Agreement.
(ix)
Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the
transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans
to the
Purchaser in exchange for consideration consisting of a cash amount
equal
to the Purchase Consideration. The consideration received by the
Seller
upon the sale of the Mortgage Loans to the Purchaser will
constitute at
least reasonably equivalent value and fair consideration for the
Mortgage
Loans. The Seller will be solvent at all relevant times prior to,
and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser
with any intent to hinder, delay or defraud any of the creditors of
the
Seller.
(x)
The Prospectus Supplement contains all the information that
is required to be provided in respect of the Seller (that arise
from its
role as "sponsor" (within the meaning of Regulation AB)), the
Mortgage
Loans, the related Mortgagors and the related Mortgaged Properties
pursuant to Regulation AB. For purpose of this Agreement,
"Regulation AB"
shall mean Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17
C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time,
and subject to such clarification and interpretation as have been
provided
by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7,
2005)) or by the staff of the Commission, or as may be provided by
the
Commission or its staff from time to time.
(b)
The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and
the Trustee
for the benefit of the
7
Certificateholders as of the Closing Date (unless a different date
is specified
therein), with respect to (and solely with respect to) each
Mortgage Loan,
subject, however, to the exceptions set forth on Annex A to
Schedule I of this
Agreement.
(c)
If the Seller receives written notice of a Document Defect
or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a)
of the
Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days
from receipt of such notice (or, in the case of a Document Defect
or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within
the meaning
of the REMIC Provisions (a "Qualified Mortgage"), not later than 90
days from
any party to the Pooling and Servicing Agreement discovering such
Document
Defect or Breach, provided the Seller receives such notice in a
timely manner),
if such Document Defect or Breach materially and adversely affects
the value of
the related Mortgage Loan or the interests of the
Certificateholders therein,
cure such Document Defect or Breach, as the case may be, in all
material
respects, which shall include payment of losses and any Additional
Trust Fund
Expenses associated therewith or, if such Document Defect or Breach
(other than
omissions due solely to a document not having been returned by the
related
recording office) cannot be cured within such 90-day period, (i)
repurchase the
affected Mortgage Loan (which, for the purposes of this clause (i),
shall
include an REO Loan) at the applicable Purchase Price (as defined
in the Pooling
and Servicing Agreement) not later than the end of such 90-day
period or (ii)
substitute a Qualified Substitute Mortgage Loan for such affected
Mortgage Loan
(which, for purposes of this clause (ii), shall include an REO
Loan) not later
than the end of such 90-day period (and in no event later than the
second
anniversary of the Closing Date) and pay the applicable Master
Servicer for
deposit into its Collection Account any Substitution Shortfall
Amount in
connection therewith; provided, however, that, unless the Document
Defect or
Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, if such
Document Defect or Breach is capable of being cured but not within
such 90-day
period and the Seller has commenced and is diligently proceeding
with the cure
of such Document Defect or Breach within such 90-day period, the
Seller shall
have an additional 90 days to complete such cure (or, failing such
cure, to
repurchase or substitute the related Mortgage Loan (which, for
purposes of such
repurchase or substitution, shall include an REO Loan)); and
provided, further,
that with respect to such additional 90-day period, the Seller
shall have
delivered an officer's certificate to the Trustee setting forth the
reason(s)
such Document Defect or Breach is not capable of being cured within
the initial
90-day period and what actions the Seller is pursuing in connection
with the
cure thereof and stating that the Seller anticipates that such
Document Defect
or Breach will be cured within the additional 90-day period.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan
that is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a
"Crossed Loan
Group"), which Document Defect or Breach does not constitute a
Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such
Crossed Loan
Group (without regard to this paragraph) and is not cured as
provided for above,
shall be deemed to constitute a Document Defect or Breach, as the
case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for
purposes of
this paragraph and the Seller shall be required to repurchase or
substitute all
such Crossed Loans unless (1) the weighted average debt service
coverage ratio
for all the remaining Crossed Loans for the four calendar quarters
immediately
preceding such
8
repurchase or substitution is not less than the weighted average
debt service
coverage ratio for all such Crossed Loans, including the affected
Crossed Loan,
for the four calendar quarters immediately preceding such
repurchase or
substitution, and (2) the weighted average loan to-value ratio for
the remaining
Crossed Loans, determined at the time of repurchase or
substitution, based upon
an appraisal obtained by the Special Servicer at the expense of the
Seller shall
not be greater than the weighted average loan-to-value ratio for
all such
Crossed Loans, including the affected Crossed Loan determined at
the time of
repurchase or substitution, based upon an appraisal obtained by the
Special
Servicer at the expense of the Seller; provided, that if such debt
service
coverage and loan-to-value criteria are satisfied, any other
Crossed Loan (that
is not the Crossed Loan directly affected by the subject Document
Defect or
Breach), shall be released from its cross-collateralization and
cross-default
provision so long as such Crossed Loan (that is not the Crossed
Loan directly
affected by the subject Document Defect or Breach) is held in the
Trust Fund;
and provided, further, that the repurchase or replacement of less
than all such
Crossed Loans and the release of any Crossed Loan from a
cross-collateralization
and cross-default provision shall be further subject to the
delivery by the
Seller to the Trustee, at the expense of the Seller, of an Opinion
of Counsel to
the effect that such release would not cause either of REMIC I or
REMIC II to
fail to qualify as a REMIC under the Code or result in the
imposition of any tax
on "prohibited transactions" or "contributions" after the Startup
Day under the
REMIC Provisions. In the event that one or more of such other
Crossed Loans
satisfy the aforementioned criteria, the Seller may elect either to
repurchase
or substitute for only the affected Crossed Loan as to which the
related
Document Defect or Breach exists or to repurchase or substitute for
all of the
Crossed Loans in the related Crossed Loan Group. All documentation
relating to
the termination of the cross-collateralization provisions of a
Crossed Loan
being repurchased shall be prepared at the expense of the Seller
and, where
required, with the consent of the related Mortgagor. For a period
of two years
from the Closing Date, so long as there remains any Mortgage File
relating to a
Mortgage Loan as to which there is any uncured Document Defect or
Breach known
to the Seller that existed as of the Closing Date, the Seller shall
provide,
once every 90 days, the officer's certificate to the Trustee
described above as
to the reason(s) such Document Defect or Breach remains uncured and
as to the
actions being taken to pursue cure; provided, however, that,
without limiting
the effect of the foregoing provisions of this Section 3(c), if
such Document
Defect or Breach shall materially and adversely affect the value of
such
Mortgage Loan or the interests of the holders of the Certificates
therein
(subject to the second and third provisos in the sole sentence of
the preceding
paragraph), the Seller shall in all cases on or prior to the second
anniversary
of the Closing Date either cause such Document Defect or Breach to
be cured or
repurchase or substitute for the affected Mortgage Loan (for the
avoidance of
doubt, the foregoing two-year period shall not be deemed to be a
time limitation
on the Seller's right to cure a Document Defect as set forth in
this Section 3).
The delivery of a commitment to issue a policy of lender's title
insurance as
described in representation 8 set forth on Schedule I hereto in
lieu of the
delivery of the actual policy of lender's title insurance shall not
be
considered a Document Defect or Breach with respect to any Mortgage
File if such
actual policy of insurance is delivered to the Trustee or a
Custodian on its
behalf not later than the 180th day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed
above in this
Section 3(c) while the Trustee continues to hold any other Crossed
Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce
any remedies
against the other's Primary Collateral (as defined below), but each
is
9
permitted to exercise remedies against the Primary Collateral
securing its
respective Crossed Loan(s), so long as such exercise does not
materially impair
the ability of the other party to exercise its remedies against the
Primary
Collateral securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the
Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller
and the
Purchaser shall forbear from exercising such remedies until the
Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be
modified in
a manner consistent with this Agreement to remove the threat of
material
impairment as a result of the exercise of remedies or some other
mutually agreed
upon accommodation can be reached. Any reserve or other cash
collateral or
letters of credit securing the Crossed Loans shall be allocated
between such
Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related
Mortgage Loan documents do not so provide, then on a pro rata basis
based upon
their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a
Crossed Loan is modified to terminate the related
cross-collateralization and/or
cross-default provisions, the Seller shall furnish to the Trustee
an Opinion of
Counsel that such modification shall not cause an Adverse REMIC
Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any
property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document
Defect or Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and to the extent not covered
by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee
or the Trust
Fund in connection with such release, (ii) the remaining Mortgaged
Property(ies)
satisfy the requirements, if any, set forth in the Mortgage Loan
documents and
the Seller provides an opinion of counsel to the effect that such
release would
not cause either of REMIC I or REMIC II to fail to qualify as a
REMIC under the
Code or result in the imposition of any tax on "prohibited
transactions" or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) each
Rating Agency then rating the Certificates shall have provided
written
confirmation that such release would not cause the then-current
ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this
paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be
the cure of
such breach by the Seller, which cure shall be effected through the
payment by
the Seller of such costs and expenses (without regard to whether
10
such costs and expenses are material or not) specified in such
representation
that have not, at the time of such cure, been received by the
applicable Master
Servicer or the Special Servicer from the related Mortgagor and not
a repurchase
or substitution of the related Mortgage Loan. Following the
Seller's remittance
of funds in payment of such costs and expenses, the Seller shall be
deemed to
have cured the breach of representation 30 in all respects. To the
extent any
fees or expenses that are the subject of a cure by the Seller are
subsequently
obtained from the related Mortgagor, the cure payment made by the
Seller shall
be returned to the Seller. Notwithstanding the prior provisions of
this
paragraph, the Seller, acting in its sole discretion, may effect a
repurchase or
substitution (in accordance with the provisions of this Section
3(c) setting
forth the manner in which a Mortgage Loan may be repurchased or
substituted) of
a Mortgage Loan, as to which representation 30 set forth on
Schedule I has been
breached, in lieu of paying the costs and expenses that were the
subject of the
breach of representation 30 set forth on Schedule I.
(d)
In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of
a certificate
from a Servicing Officer certifying as to the receipt of the
applicable Purchase
Price (as defined in the Pooling and Servicing Agreement) or
Substitution
Shortfall Amount(s), as applicable, in the applicable Master
Servicer's
Collection Account, and, if applicable, the delivery of the
Mortgage File(s) and
the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to
the Custodian and the applicable Master Servicer, respectively, (i)
the Trustee
shall be required to execute and deliver such endorsements and
assignments as
are provided to it by the applicable Master Servicer or the Seller,
in each case
without recourse, representation or warranty, as shall be necessary
to vest in
the Seller the legal and beneficial ownership of each repurchased
Mortgage Loan
or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian,
the applicable Master Servicer and the Special Servicer shall each
tender to the
Seller, upon delivery to each of them of a receipt executed by the
Seller, all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it, and (iii) the applicable Master Servicer and
the Special
Servicer shall release to the Seller any Escrow Payments and
Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the
substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified
Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under
this
Agreement if, after such substitution, the aggregate of the Stated
Principal
Balances of all Qualified Substitute Mortgage Loans which have been
substituted
for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of
all the Mortgage Loans and the Other Mortgage Loans. Periodic
Payments due with
respect to any Qualified Substitute Mortgage Loan on or prior to
the related
date of substitution shall not be part of the Trust Fund or REMIC
I.
11
(e)
This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage
File or any
Breach of any representation or warranty set forth in or required
to be made
pursuant to this Section 3.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this
Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit
of the
Seller as of the date hereof that:
(a)
The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware and the
Purchaser has taken all necessary corporate action to authorize the
execution,
delivery and performance of this Agreement by it, and has the power
and
authority to execute, deliver and perform this Agreement and all
transactions
contemplated hereby.
(b)
This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by
the Purchaser's
directors and officers has been taken in connection therewith, and
(assuming the
due authorization, execution and delivery hereof by the Seller)
this Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent
transfer, reorganization, receivership, conservatorship or
moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or
(C) general
equity principles (regardless of whether such enforcement is
considered in a
proceeding in equity or at law).
(c)
The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the
terms of this
Agreement will not (A) violate the Purchaser's articles of
incorporation or
bylaws, (B) violate any law or regulation or any administrative
decree or order
to which it is subject if compliance therewith is necessary (1) to
ensure the
enforceability of this Agreement or (2) for the Purchaser to
perform its duties
and obligations under this Agreement or (C) constitute a default
(or an event
which, with notice or lapse of time, or both, would constitute a
default) under,
or result in the breach of, any material contract, agreement or
other instrument
to which the Purchaser is a party or by which the Purchaser is
bound, which
default might have consequences that would, in the Purchaser's
reasonable and
good faith judgment, materially and adversely affect the condition
(financial or
other) or operations of the Purchaser or its properties or have
consequences
that would materially and adversely affect its performance
hereunder.
(d)
The Purchaser is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws
or any other
corporate restriction or any judgment, order, writ, injunction,
decree, law or
regulation that would, in the Purchaser's reasonable and good faith
judgment,
materially and adversely affect the ability of the Purchaser to
perform its
obligations under this Agreement or that requires the consent of
any third
person to the execution of this Agreement or the performance by the
Purchaser of
its obligations under this Agreement (except to the extent such
consent has been
obtained).
12
(e)
Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), 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 by the Purchaser of, or
compliance by
the Purchaser with, this Agreement, or the consummation by the
Purchaser of any
transaction described in this Agreement.
(f)
Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the
Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in
exchange for
consideration consisting of a cash amount equal to the aggregate
Purchase
Consideration.
(g)
There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against
the Purchaser
in any court or by or before any other governmental agency or
instrumentality
which would materially and adversely affect the validity of this
Agreement or
any action taken in connection with the obligations of the
Purchaser
contemplated herein, or which would be likely to impair materially
the ability
of the Purchaser to enter into and/or perform under the terms of
this Agreement.
(h)
The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or other governmental agency or body, which default might
have
consequences that would, in the Purchaser's reasonable and good
faith judgment,
materially and adversely affect the condition (financial or other)
or operations
of the Purchaser or its properties or might have consequences that
would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Austin LLP
on the Closing
Date. The Closing shall be subject to each of the following
conditions:
(a)
All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement and all of
the representations and warranties of the Purchaser set forth in
Section 4 of
this Agreement shall be true and correct in all material respects
as of the
Closing Date;
(b)
All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the
Purchaser, the Seller, the Underwriters and their respective
counsel in their
reasonable discretion, shall be duly executed and delivered by all
signatories
as required pursuant to the respective terms thereof;
(c)
The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the applicable Master Servicer,
respectively,
all documents represented to have been or required to be delivered
to the
Trustee and such Master Servicer pursuant to Section 2 of this
Agreement;
(d)
All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been
complied with in
all material respects and the Seller and the Purchaser shall have
the ability to
comply with all terms and conditions and
13
perform all duties and obligations required to be complied with or
performed
after the Closing Date;
(e)
The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of
the Closing
Date;
(f)
One or more letters from the independent accounting firm of
Ernst & Young LLP, in form satisfactory to the Purchaser and
relating to certain
information regarding the Mortgage Loans and Certificates as set
forth in the
Prospectus (as defined in Section 6(d) of this Agreement) and
Prospectus
Supplement (as defined in Section 6(d) of this Agreement),
respectively, shall
have been delivered; and
(g)
The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of
December 1, 2006,
among the Seller, Merrill Lynch Mortgage Lending, Inc., Countrywide
Commercial
Real Estate Finance, Inc. and IXIS Real Estate Capital Inc., the
Purchaser, the
Underwriters and the Initial Purchasers. Both parties agree to use
their best
reasonable efforts to perform their respective obligations
hereunder in a manner
that will enable the Purchaser to purchase the Mortgage Loans on
the Closing
Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of
the following:
(a)
(i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by
the parties
thereto and (iii) the agreement(s) pursuant to which the servicing
rights with
respect to the Mortgage Loans are being sold to the applicable
Master Servicer
(such agreement(s), individually or collectively, as the case may
be, "Servicing
Rights Purchase Agreement");
(b)
An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and
upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to
the effect
that: (i) the representations and warranties of the Seller in this
Agreement are
true and correct in all material respects at and as of the Closing
Date with the
same effect as if made on such date; and (ii) the Seller has, in
all material
respects, complied with all the agreements and satisfied all the
conditions on
its part that are required under this Agreement to be performed or
satisfied at
or prior to the Closing Date;
(c)
An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date,
and upon
which the Purchaser may rely, to the effect that each individual
who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate
delivered on or
before the Closing Date in connection with the transactions
contemplated herein
or therein, was at the respective times of such signing and
delivery, and is as
of the Closing Date, duly elected or appointed, qualified and
acting as such
officer or representative, and the signatures of such persons
appearing on such
documents and certificates are their genuine signatures;
(d)
An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date,
and upon
which the Purchaser, the Underwriters and Initial Purchasers may
rely, to the
effect that (i) such officer has carefully examined the
14
Specified Portions (as defined below) of the Free Writing
Prospectus and nothing
has come to his/her attention that leads him/her to believe that
the Specified
Portions of the Free Writing Prospectus, as of the Time of Sale or
as of the
Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein relating to
the Mortgage
Loans, in light of the circumstances under which they were made,
not misleading,
(ii) such officer has carefully examined the Specified Portions (as
defined
below) of the Prospectus Supplement and nothing has come to his/her
attention
that leads him/her to believe that the Specified Portions of the
Prospectus
Supplement, as of the date of the Prospectus Supplement or as of
the Closing
Date, included or include any untrue statement of a material fact
relating to
the Mortgage Loans or omitted or omit to state therein a material
fact necessary
in order to make the statements therein relating to the Mortgage
Loans, in light
of the circumstances under which they were made, not misleading,
and (iii) such
officer has carefully examined the Specified Portions (as defined
below) of the
Memorandum (pursuant to which certain classes of the Private
Certificates are
being privately offered) and nothing has come to his/her attention
that leads
him/her to believe that the Specified Portions of the Memorandum,
as of the date
thereof or as of the Closing Date, included or include any untrue
statement of a
material fact relating to the Mortgage Loans or omitted or omit to
state therein
a material fact necessary in order to make the statements therein
related to the
Mortgage Loans, in the light of the circumstances under which they
were made,
not misleading.
The "Specified Portions" of each Free Writing Prospectus shall
consist of Annex A-1 to such Free Writing Prospectus, entitled
"Certain
Characteristics of the Mortgage Loans" (insofar as the information
contained in
Annex A-1 relates to the Mortgage Loans sold by the Seller
hereunder), Annex A-2
to such Free Writing Prospectus, entitled "Certain Statistical
Information
Regarding the Mortgage Loans" (insofar as the information contained
in Annex A-2
relates to the Mortgage Loans sold by the Seller hereunder), Annex
B to such
Free Writing Prospectus entitled "Certain Characteristics Regarding
Multifamily
Properties" (insofar as the information contained in Annex B
relates to the
Mortgage Loans sold by the Seller hereunder), Annex C to such Free
Writing
Prospectus, entitled "Structural and Collateral Term Sheet"
(insofar as the
information contained in Annex C relates to the Mortgage Loans sold
by the
Seller hereunder), the CD-ROM which accompanies such Free Writing
Prospectus
(insofar as such CD-ROM is consistent with Annex A-1, Annex A-2
and/or Annex B),
and the following sections of such Free Writing Prospectus (only to
the extent
that any such information relates to the Seller or the Mortgage
Loans sold by
the Seller hereunder and exclusive of any statements in such
sections that
purport to describe the servicing and administration provisions of
the Pooling
and Servicing Agreement and exclusive of aggregated numerical
information that
includes the Other Mortgage Loans): "Summary of Offering
Prospectus--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Offering
Prospectus--The
Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool" and
"Transaction
Participants--The Sponsors" and "Affiliations and Certain
Relationships and
Related Transactions".
The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 to the Prospectus Supplement, entitled "Certain
Characteristics of
the Mortgage Loans" (insofar as the information contained in Annex
A-1 relates
to the Mortgage Loans sold by the Seller hereunder), Annex A-2 to
the Prospectus
Supplement, entitled "Certain Statistical
15
Information Regarding the Mortgage Loans" (insofar as the
information contained
in Annex A-2 relates to the Mortgage Loans sold by the Seller
hereunder), Annex
B to the Prospectus Supplement entitled "Certain Characteristics
Regarding
Multifamily Properties" (insofar as the information contained in
Annex B relates
to the Mortgage Loans sold by the Seller hereunder), Annex C to the
Prospectus
Supplement, entitled "Description of the Ten Largest Mortgage Loans
and/or
Groups of Cross-Collateralized Mortgage Loans" (insofar as the
information
contained in Annex C relates to the Mortgage Loans sold by the
Seller
hereunder), the CD-ROM which accompanies the Prospectus Supplement
(insofar as
such CD-ROM is consistent with Annex A-1, Annex A-2 and/or Annex
B), and the
following sections of the Prospectus Supplement (only to the extent
that any
such information relates to the Seller or the Mortgage Loans sold
by the Seller
hereunder and exclusive of any statements in such sections that
purport to
describe the servicing and administration provisions of the Pooling
and
Servicing Agreement and exclusive of aggregated numerical
information that
includes the Other Mortgage Loans): "Summary of Prospectus
Supplement--Relevant
Parties--Sponsors/Mortgage Loan Sellers", "Summary of Prospectus
Supplement--The
Mortgage Loans and the Mortgaged Real Properties", "Risk
Factors--Risks Related
to the Mortgage Loans", "Description of the Mortgage Pool" and
"Transaction
Participants--The Sponsors" and "Affiliations and Certain
Relationships and
Related Transactions".
The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an
exhibit to
the Memorandum).
For purposes of this Section 6(d) and this Agreement, the following
terms have the meanings set forth below:
"Free Writing Prospectus" means each of the Offering Prospectus
dated November 20, 2006 and relating to the Publicly-Offered
Certificates, as
supplemented and amended by the Offering Prospectus dated November
28, 2006 and
relating to the Publicly-Offered Certificates;
"Memorandum" means the confidential Private Placement Memorandum
dated December 1, 2006, and relating to the Private Certificates;
"Prospectus" means the prospectus dated September 13, 2006.
"Prospectus Supplement" means the prospectus supplement dated
December 1, 2006, that supplements the Prospectus and relates to
the
Publicly-Offered Certificates; and
"Time of Sale" means December 1, 2006, at 12:30 p.m.
(e)
Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering
into the
transactions contemplated by this Agreement, (ii) the articles of
association
and bylaws of the Seller, and (iii) an original or a copy of a
certificate of
corporate existence of the Seller issued by the Office of the
Comptroller of the
Currency not earlier than 30 days prior to the Closing Date;
(f)
A written opinion of counsel for the Seller relating to
organizational and enforceability matters (which opinion may be
from in-house
counsel, outside counsel or a
16
combination thereof), reasonably satisfactory to the Purchaser, its
counsel and
the Rating Agencies, dated the Closing Date and addressed to the
Purchaser, the
Trustee, the Underwriters, the Initial Purchasers and each of the
Rating
Agencies, together with such other written opinions, including as
to insolvency
matters, as may be required by the Rating Agencies; and
(g)
Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agre
