Exhibit 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 1,
2007
(this "Agreement"), is entered into COLUMN FINANCIAL, INC. (the
"Seller") and
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
a
42.86% interest in the 485 Lexington Avenue Loan (the "Mortgage
Loan")
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loan,
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 (each, a "Class") 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 (the "Pooling and Servicing Agreement"), dated
as of March
1, 2007, among the Purchaser, as depositor, Wachovia Bank, National
Association,
as master servicer (in such capacity, the "Master Servicer"),
CWCapital Asset
Management LLC, as special servicer (the "Special Servicer") and
Wells Fargo
Bank, N.A., 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.
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 Loan identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loan
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loan is
expected to have an
aggregate principal balance of $135,000,000 (the "Column Financial,
Inc.
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 Column Financial, Inc. 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 $7,903,498,737 (subject to a
variance of
plus or minus 5.0%). The purchase and sale of the Mortgage Loan
shall take place
on March 28, 2007, or such other date as shall be mutually
acceptable to the
parties to this Agreement (the "Closing Date"). The consideration
(the
"Aggregate Purchase Price") for the Mortgage Loan shall be equal to
(i)
________% of the Column Financial, Inc. Mortgage Loan Balance as of
the Cut-Off
Date, plus (ii) $584,687, which amount represents the amount of
interest accrued
on the Column Financial, Inc. Mortgage Loan Balance at the related
Net Mortgage
Rate for the period from and including the Cut-Off Date up to but
not including
the Closing Date.
The Aggregate Purchase Price 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 receipt by
the
Seller of the Aggregate Purchase Price and satisfaction of the
other conditions
to closing that are for the benefit of the Seller, 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 Loan identified on
the Mortgage
Loan Schedule as of such date, on a servicing released basis,
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.
(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
Loan 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 on or 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 Loan due
on or before
the Cut-Off Date and principal prepayments thereon), shall belong
to, and shall
be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf
of
the Purchaser, deliver to the Trustee, the documents and
instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File");
provided,
however, that the delivery of such Mortgage file by Seller or
Wachovia Bank,
National Association shall satisfy delivery requirements of Seller,
hereunder
(and for purposes of Section 5) with regard to the Mortgage Loan,
except with
respect to Seller's note. All Mortgage Files so delivered will be
held by the
Trustee in escrow at all times prior to the Closing Date. Each
Mortgage File
shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney
related to the execution thereof, 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 "Wells Fargo Bank, N.A., as trustee for the
registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage
Pass-Through Certificates, Series 2007-C30" or in blank (or a
lost note
affidavit and indemnity with a copy of such Mortgage Note
attached
thereto);
(ii) an original or copy of the Mortgage, together with 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 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
any
missing recording information), of (a) the Mortgage, (b) any
related
Assignment
of Leases (if such item is a document separate from the
Mortgage
and to the extent not already assigned pursuant to preceding
clause
(a)) and (c) any other recorded document relating to the
Mortgage
Loan
otherwise included in the Mortgage File, in favor of "Wells
Fargo
Bank,
N.A., as trustee for the registered holders of Wachovia Bank
Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series
2007-C30", or in blank;
(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 "Wells Fargo Bank, N.A., as trustee for the
registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage
Pass-Through Certificates, Series 2007-C30", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption
and substitution agreements in those instances where the terms
or
provisions of the Mortgage or Mortgage Note have been consolidated
or
modified
or the Mortgage Loan has been assumed or consolidated;
(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
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 (bearing evidence of filing) or other
evidence
of filing satisfactory to the Purchaser of any prior UCC
Financing
Statements in favor of the originator of such 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 and
continuation statement in favor of the Seller on record with
the
applicable
public office for UCC Financing Statements, an original UCC
Amendment,
in form suitable for filing in favor of "Wells Fargo Bank,
N.A., as
trustee for the registered holders of Wachovia Bank Commercial
Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C30,
as assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease, Memorandum of
Ground
Lease and ground lessor estoppel, (b) any loan guaranty or
indemnity
and (c) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the
Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement
relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer
documents
relating
to such Mortgage Loan;
(xiii) copies of any management agreement with respect to the
related
Mortgaged Property;
(xiv) copies of any cash management agreements with respect to
the
related
Mortgaged Property;
(xv) copies of franchise agreements and franchisor comfort
letters,
if any,
for hospitality properties and applicable transfer or
assignment
documents;
and
(xvi) with respect to any Companion Loan, all of the above
documents
with
respect to such Companion Loan and the related Intercreditor
Agreement;
provided that a copy of each Mortgage Note relating to such
Companion
Loan, rather than the original, shall be provided, and no
assignments shall be provided.
(d) The Seller shall take all actions reasonably necessary (i)
to
permit the Trustee to fulfill its obligations pursuant to Section
2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations
described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without
limiting the
generality of the foregoing, if a draw upon a letter of credit is
required
before its transfer to the Trust Fund can be completed, the Seller
shall draw
upon such letter of credit for the benefit of the Trust Fund
pursuant to written
instructions from the Master Servicer. The Seller shall reimburse
the Trustee
for all reasonable costs and expenses, if any, incurred by the
Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and
filing any
assignments of UCC Financing Statements described in the proviso in
the third to
last sentence in Section 2.01(d) of the Pooling and Servicing
Agreement.
(e) All documents and records (except draft documents,
privileged
communications and internal correspondence and credit, due
diligence and other
underwriting analysis, documents, data or internal worksheets,
memoranda,
communications and evaluations of the Seller) relating to each
Mortgage Loan and
in the Seller's possession (the "Additional Mortgage Loan
Documents") that are
not required to be delivered to the Trustee shall promptly be
delivered or
caused to be delivered by the Seller to the Master Servicer or at
the direction
of the Master Servicer to the appropriate sub-servicer, together
with any
related escrow amounts and reserve amounts.
(f) 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.
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 corporation organized and validly existing
and
in good
standing under the laws of the State of Delaware and possesses
all
requisite
authority, power, licenses, permits and franchises to carry on
its
business as currently conducted by it and to execute, deliver
and
comply
with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Seller and, assuming due authorization, execution
and
delivery
hereof by the Purchaser, constitutes a legal, valid and binding
obligation
of the Seller, enforceable against the Seller in accordance
with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws
relating
to or affecting the enforcement of creditors' rights in
general,
and by
general equity principles (regardless of whether such
enforcement
is
considered in a proceeding in equity or at law), and by public
policy
considerations underlying the securities laws, to the extent that
such
public
policy considerations limit the enforceability of the provisions
of
this
Agreement which purport to provide indemnification from
liabilities
under
applicable securities laws;
(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 or (C) constitute a material default (or an event
which,
with notice or lapse of time, or both, would constitute a
material
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;
(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 have consequences
that would
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 certificate of incorporation, 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 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) No litigation is pending or, to the Seller's knowledge,
threatened
against the Seller that would, in the Seller's good faith and
reasonable
judgment, prohibit its entering into this Agreement or
materially
and adversely affect the performance by the Seller of its
obligations under this Agreement;
(viii) Under generally accepted accounting principles ("GAAP")
and
for
federal income tax purposes, the Seller will report the transfer
of
the
Mortgage Loan to the Purchaser as a sale of the Mortgage Loan to
the
Purchaser
in exchange for consideration consisting of a cash amount equal
to the
Aggregate Purchase Price. The consideration received by the
Seller
upon the
sale of the Mortgage Loan to the Purchaser will constitute at
least
reasonably equivalent value and fair consideration for the
Mortgage
Loan. The
Seller will be solvent at all relevant times prior to, and will
not be
rendered insolvent by, the sale of the Mortgage Loan to the
Purchaser.
The Seller is not selling the Mortgage Loan to the Purchaser
with any
intent to hinder, delay or defraud any of the creditors of the
Seller;
and
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the
Trustee for the
benefit of the Certificateholders as of the Closing Date, with
respect to (and
solely with respect to) each Mortgage Loan, which representations
and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or,
in the
reasonable discretion of the Controlling Class Representative,
thirty (30)
Business Days) of the Closing Date, with respect to the documents
specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground
Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any
material exception
listed therein (for the avoidance of doubt, any deficiencies with
respect to the
documents specified in clause (ii) resulting solely from a delay in
the return
of the related documents from the applicable recording office,
shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and
Servicing
Agreement). If such exception is not so cured, the Seller shall
either (1)
repurchase the related Mortgage Loan, (2) with respect to
exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the
Trustee an
amount, to be held in trust in a Special Reserve Account pursuant
to the Pooling
and Servicing Agreement, equal to the amount of the undelivered
letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a
certified
copy to the Master Servicer and Trustee, a letter of credit for the
benefit of
the Master Servicer on behalf of the Trustee and upon the same
terms and
conditions as the undelivered letter of credit) which the Master
Servicer on
behalf of the Trustee may use (or draw upon, as the case may be)
under the same
circumstances and conditions as the Master Servicer would have been
entitled to
draw on the undelivered letter of credit, or (3) with respect to
any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee
an amount, to
be held in trust in a Special Reserve Account pursuant to the
Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance
of the related
Mortgage Loan on such date. Any funds or letter of credit deposited
pursuant to
clauses (2) and (3) above shall be held by the Trustee until the
earlier of (x)
the date on which the Master Servicer certifies to the Trustee and
the
Controlling Class Representative that such exception has been cured
(or the
Trustee certifies the same to the Controlling Class
Representative), at which
time such funds or letter of credit, as applicable, shall be
returned to the
Seller and (y) thirty (30) Business Days or, if the Controlling
Class
Representative has extended the cure period, forty-five (45)
Business Days after
the Closing Date; provided, however, that if such exception is not
cured within
such thirty (30) Business Days or forty-five (45) Business Days, as
the case may
be, (A) in the case of clause (2), the Trustee shall retain the
funds on deposit
in the related Special Reserve Account, or letter of credit, as
applicable, or
(B) in the case of clause (3), the Seller shall repurchase the
related Mortgage
Loan in accordance with the terms and conditions of this Agreement,
at which
time such funds shall be applied to the Purchase Price of the
related Mortgage
Loan and any letter of credit will be returned to the Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement
relating to a Mortgage Loan, then the Seller shall not later than
ninety (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
ninety (90)
days from the date that any party to the Pooling and Servicing
Agreement
discovers such Document Defect or Breach; provided the Seller
receives such
notice in a timely manner), if such Document Defect or Breach shall
materially
and adversely affect the value of the applicable Mortgage Loan, the
interest of
the Trust Fund therein or the interests of any Certificateholder,
cure such
Document Defect or Breach, as the case may be, in all material
respects, which
shall include payment of actual or provable losses and any
Additional Trust Fund
Expenses directly resulting from any such Document Defect or Breach
or, if such
Document Defect or Breach (other than omissions solely due 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 at
the applicable
Purchase Price not later than the end of such 90-day period or (ii)
substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage 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 Master Servicer for
deposit into
the Certificate Account, any Substitution Shortfall Amount in
connection
therewith; provided, however, that unless the Breach would cause
the Mortgage
Loan not to be a Qualified Mortgage, and 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, such Seller shall have an
additional ninety
(90) days to complete such cure (or, failing such cure, to
repurchase or
substitute the related Mortgage Loan); 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 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; provided, further, that no Document Defect (other than with
respect to a
Mortgage Note, Mortgage, title insurance policy, Ground Lease, any
letter of
credit, any franchise agreement, any comfort letter and (if
required) any
comfort letter transfer documents (collectively, the "Core Material
Documents"))
shall be considered to materially and adversely affect the value of
the related
Mortgage Loan, the interests of the Trust Fund therein or the
interests of any
Certificateholder unless the document with respect to which the
Document Defect
exists is required in connection with an imminent enforcement of
the mortgagee's
rights or remedies under the related Mortgage Loan, defending any
claim asserted
by any borrower or third party with respect to the Mortgage Loan,
establishing
the validity or priority of any lien or any collateral securing the
Mortgage
Loan or for any immediate significant servicing obligations;
provided, further,
with respect to Document Defects which materially and adversely
affect the
interests of any Certificateholder, the interests of the Trust Fund
therein or
the value of the related Mortgage Loan, other than with respect to
Document
Defects relating to the Core Material Documents, any applicable
cure period
following the initial 90-day cure period may be extended by the
Master Servicer
or the Special Servicer if the document involved is not needed
imminently. Such
extension will end upon thirty (30) days notice of such need as
reasonably
determined by the Master Servicer or Special Servicer (with a
possible thirty
(30) day extension if the Master Servicer or Special Servicer
agrees that the
Seller is diligently pursuing a cure). The Seller shall cure all
Document
Defects which materially and adversely affect the interests of
any
Certificateholder, the interests of the Trust Fund therein or the
value of the
related Mortgage Loan, regardless of the document involved, no
later than two
years following the Closing Date; provided that the initial 90-day
cure period
referenced in this paragraph may not be reduced. 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, the
Seller shall provide the officer's certificate to the Trustee
described above as
to the reasons such Document Defect or Breach remains uncured and
as to the
actions being taken to pursue cure. Notwithstanding the foregoing,
the delivery
of a commitment to issue a policy of lender's title insurance as
described in
Representation 12 of Schedule I hereof 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 90th
day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage
Loan is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable 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 Group (without regard to this
paragraph),
then the applicable Document Defect or Breach, as the case may be,
will be
deemed to constitute a Document Defect or Breach, as the case may
be, as to any
other Crossed Loan in the Crossed Group for purposes of this
paragraph, and the
Seller will be required to repurchase or substitute for all of the
remaining
Crossed Loan(s) in the related Crossed Group as provided in the
immediately
preceding paragraph unless such other Crossed Loans in such Crossed
Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other
criteria for
substitution or repurchase of the Mortgage Loan set forth herein.
In the event
that the remaining 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 Breach or Document Defect exists or to
repurchase or
substitute for all of the Crossed Loans in the related Crossed
Group. The Seller
shall be responsible for the cost of any Appraisal required to be
obtained by
the Master Servicer to determine if the Crossed Loan Repurchase
Criteria have
been satisfied, so long as the scope and cost of such Appraisal has
been
approved by the Seller (such approval not to be unreasonably
withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed
above while the
Trustee continues to hold any other Crossed Loans in such Crossed
Group, neither
the Seller nor the Purchaser shall enforce any remedies against the
other's
Primary Collateral, but each is permitted to exercise remedies
against the
Primary Collateral securing its respective Crossed Loans, including
with respect
to the Trustee, the Primary Collateral securing Crossed Loans still
held by the
Trustee.
If the exercise of remedies 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 Loans 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 that complies with this Agreement to remove
the threat of
material impairment as a result of the exercise of remedies or some
other
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 otherwise on a
pro rata basis
based upon their outstanding Stated Principal Balances.
Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified
to terminate
the related cross-collateralization and/or cross-default
provisions, as a
condition to such modification, the Seller shall furnish to the
Trustee an
Opinion of Counsel that any modification shall not cause an Adverse
REMIC Event.
Any expenses incurred in good faith by the Purchaser in connection
with such
modification or accommodation (including, but not limited to,
recoverable
attorney fees) shall be paid by the Seller.
(d) In connection with any permitted repurchase or substitution
of
the Mortgage Loan contemplated hereby, upon receipt of a
certificate from a
Servicing Officer certifying as to the receipt of the Purchase
Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate
Account, and
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
Master Servicer,
respectively, if applicable (i) the Trustee shall execute and
deliver such
endorsements and assignments as are provided to it by the Master
Servicer, 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 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 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 substituted Mortgage Loan.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the
Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and
warranties
are being made for risk allocation purposes. This Section 3
provides the sole
remedy available to 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. Nothing in this Agreement shall
prohibit the
Purchaser or its assigns (including the Master Servicer and/or the
Special
Servicer) from pursuing any course of action authorized by the
Pooling and
Servicing Agreement while the Purchaser asserts a claim or brings a
cause of
action to enforce any rights set forth herein against the
Seller.
(f) With
respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with
respect to which
the related Mortgaged Property has been foreclosed and which is the
subject of a
repurchase claim under this Agreement, in accordance with Section
2.03 of the
Pooling and Servicing Agreement, the Special Servicer with the
consent of the
Controlling Class Representative shall notify the Seller in writing
of its
intention to liquidate such Defaulted Mortgage Loan or REO Property
at least 45
days prior to any such action. If (a) the Seller consents to such
sale and
voluntarily agrees to repurchase such Defaulted Mortgage Loan or
REO Property or
(b) a court of competent jurisdiction determines that the Seller is
liable under
this Agreement to repurchase such Defaulted Mortgage Loan or REO
Property, then
such Seller shall remit to the Purchaser an amount equal to the
difference if
any of the price of such Defaulted Mortgage Loan or REO Property as
sold and the
price at which the Seller would have had to repurchase such
Defaulted Mortgage
Loan or REO Property under this Agreement. The Seller shall have
ten (10)
Business Days after receipt of notice to determine whether or not
to consent to
such sale. If the Seller does not consent to such sale, the Special
Servicer
shall contract with a Determination Party (as defined in the
Pooling and
Servicing Agreement) as to the merits of such proposed sale. If the
related
Determination Party determines that such proposed sale is in
accordance with the
Servicing Standard and the provisions of the Pooling and Servicing
Agreement
with respect to the sale of the Defaulted Mortgage Loan and REO
Properties and,
subsequent to such sale, a court of competent jurisdiction
determines that the
Seller was liable under this Agreement and required to repurchase
such Defaulted
Mortgage Loan or REO Property in accordance with the terms hereof,
then the
Seller shall remit to the Purchaser an amount equal to the
difference (if any)
between the proceeds of the related action and the price at which
the Seller
would have been obligated to pay had the Seller repurchased such
Defaulted
Mortgage Loan or REO Property prior to the execution of a binding
contract of
sale with a third party in accordance with the terms hereof
including the costs
related to contracting with the related Determination Party;
provided that the
foregoing procedure in this Section 3(f) shall not preclude such
Seller from
repurchasing the Defaulted Mortgage Loan or REO Property prior to
the execution
of a binding contract of sale with a third party in accordance with
the other
provisions of this Section 3 (excluding this Section 3(f)). If the
related
Determination Party determines that the sale of the related
Defaulted Mortgage
Loan or REO Property is not in accordance with the Servicing
Standard and the
provisions of the Pooling and Servicing Agreement with respect to
the sale of
the Defaulted Mortgage Loan and REO Properties and the Special
Servicer
subsequently sells such Mortgage Loan or REO Property, then the
Seller will not
be liable for any such difference (nor any cost of contracting with
the
Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach
relating
to whether or not the Mortgage Loan documents or any particular
Mortgage Loan
document requires the related Mortgagor to bear the costs and
expenses
associated with any particular action or matter under such Mortgage
Loan
document(s) with respect to matters described in Representations 23
and 43 of
Schedule I hereof, then the Purchaser shall direct the Seller in
writing to wire
transfer to the Master Servicer for deposit into the Certificate
Account, within
ninety (90) days of the Seller's receipt of such direction, the
amount of any
such costs and expenses borne by the Purchaser, the
Certificateholders, the
Master Servicer, the Special Servicer and the Trustee on their
behalf that are
the basis of such Breach. Upon its making such deposit, the Seller
shall be
deemed to have cured such Breach in all respects. Provided such
payment is made
in full, this paragraph describes the sole remedy available to the
Purchaser,
the Certificateholders, the Master Servicer, the Special Servicer
and the
Trustee on their behalf regarding any such Breach and the Seller
shall not be
obligated to repurchase the affected Mortgage Loan on account of
such Breach or
otherwise cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In
order
to induce the Seller to enter into this Agreement, the Purchaser
hereby
represents and warrants 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 North Carolina.
The
Purchaser has the full corporate power and authority and legal
right to acquire
the Mortgage Loan from the Seller and to transfer the Mortgage Loan
to the
Trustee.
(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 obligation 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,
reorganization, receivership 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) 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.
(d) None of the acquisition of the Mortgage Loan by the
Purchaser,
the transfer of the Mortgage Loan to the Trustee, or the execution,
delivery or
performance of this Agreement by the Purchaser, results or will
result in the
creation or imposition of any lien on any of the Purchaser's assets
or property,
or conflicts or will conflict with, results or will result in a
breach of, or
require or will require the consent of any third person or
constitutes or will
constitute a default under (A) any term or provision of the
Purchaser's
certificate of incorporation or bylaws, (B) any term or provision
of any
material agreement, contract, instrument or indenture, to which the
Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule,
regulation,
order, judgment, writ, injunction or decree of any court or
governmental
authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the
Purchaser
will report the transfer of the Mortgage Loan by the Seller to the
Purchaser as
a sale of the Mortgage Loan to the Purchaser in exchange for
consideration
consisting of a cash amount equal to the Aggregate Purchase
Price.
(f) 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 its obligations under the terms of this
Agreement.
(g) 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 governmental agency or body, which default might have
consequences
that would 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
Loan
(the "Closing") shall be held at the offices of Cadwalader,
Wickersham & Taft
LLP, Charlotte, North Carolina 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) The Pooling and Servicing Agreement (to the extent it
affects
the obligations of the Seller hereunder) and 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, the
Initial
Purchaser 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 Master Servicer, respectively,
all documents
represented to have been or required to be delivered to the Trustee
and the
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 shall have the ability to comply
with all terms
and conditions and 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;
and
(f) The letters shall have been received from the independent
accounting firm KPMG LLP, in form satisfactory to the Purchaser,
relating to
certain information regarding the Mortgage Loan and Certificates as
set forth in
the Prospectus, the Preliminary Prospectus Supplement, the
Prospectus
Supplement, the Preliminary Memorandum and the Memorandum.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loan on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of
the following:
(a) This Agreement duly executed by the Purchaser and the
Seller;
(b) A 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 Purchaser 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 or any other
document or
certificate delivered on or before the Closing Date in connection
with the
transactions contemplated herein, 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 the Initial Purchaser may rely, to
the effect
that with respect to the Seller, the Mortgage Loan, the related
Mortgagors and
the related Mortgaged Properties (i) such officer has carefully
examined the
Specified Portions of the Preliminary Prospectus Supplement
together with all
other Time of Sale Information delivered prior to the Time of Sale
and nothing
has come to his attention that would lead him to believe that the
Specified
Portions of the Preliminary Prospectus Supplement together with all
other Time
of Sale Information delivered prior to the Time of Sale, 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 Loan or omitted or omit to
state therein
a material fact necessary in order to make the statements therein
relating to
the Mortgage Loan, in light of the circumstances under which they
were made, not
misleading, (ii) such officer has carefully examined the Specified
Portions of
the Prospectus Supplement and nothing has come to his attention
that would lead
him 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 Loan or
omitted or omit to state therein a material fact necessary in order
to make the
statements therein relating to the Mortgage Loan, in light of the
circumstances
under which they were made, not misleading, (iii) such officer has
examined the
Specified Portions of the Memorandum and nothing has come to his
attention that
would lead him 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 Loan or
omitted or omit to
state therein a material fact necessary in order to make the
statements therein
related to the Mortgage Loan, in the light of the circumstances
under which they
were made, not misleading. The "Specified Portions" of the
Preliminary
Prospectus Supplement or the Prospectus Supplement, as applicable,
shall consist
of Annex A and Annex D thereto, the diskette which accompanies the
Prospectus
Supplement (insofar as such diskette is consistent with such Annex
A) and the
following sections of the Preliminary Prospectus Supplement or the
Prospectus
Supplement, as applicable (exclusive of any statements in such
sections that
purport to summarize the servicing and administration provisions of
the Pooling
and Servicing Agreement): "SUMMARY OF PROSPECTUS SUPPLEMENT--THE
PARTIES--The
Mortgage Loan Sellers", "SUMMARY OF PROSPECTUS SUPPLEMENT--THE
MORTGAGE LOANS",
"RISK FACTORS--The Mortgage Loans", "DESCRIPTION OF THE MORTGAGE
POOL--General",
"--Mortgage Loan History", "--Certain Terms and Conditions of the
Mortgage
Loans", "--Assessments of Property Condition", "--Co-Lender
Loans",
"--Additional Mortgage Loan Information", "--Twenty Largest
Mortgage Loans",
"--The Mortgage Loan Sellers" and "--Representations and
Warranties; Repurchases
and Substitutions". The "Specified Portions" of the Memorandum
shall consist of
the Specified Portions of the Prospectus Supplement, the first and
second full
paragraphs on page "v" of the Memorandum.
(e) The resolutions of the requisite committee of the Seller's
special loan committee authorizing the Seller's entering into the
transactions
contemplated by this Agreement, the certificate of incorporation
and by-laws of
the Seller, and an original or copy of a certificate of good
standing of the
Seller issued by the State of Delaware not earlier than sixty (60)
days prior to
the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion
may
be from in-house counsel, outside counsel or a 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 Purchaser and each of the Rating Agencies, together with
such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser,
the
Underwriters, the Initial Purchaser, their respective officers and
directors,
and each person, if any, who controls the Purchaser, any
Underwriter or any
Initial Purchaser within the meaning of either Section 15 of the
Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the
Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all
losses, expenses
(including the reasonable fees and expenses of legal counsel),
claims, damages
or liabilities, joint or several, to which they or any of them may
become
subject under the 1933 Act, the 1934 Act or other federal or state
statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims,
damages or liabilities (or actions in respect thereof) (i) arise
out of or are
based upon a breach of the representations made by the Seller in
Section
3(a)(ix) hereof, (ii) arise out of or are based upon a breach or
violation of
the representations made by the Seller in Section 3(a)(x) hereof,
(iii) arise
out of or are based upon any untrue statement or alleged untrue
statement of a
material fact contained in (A) the Prospectus Supplement, the
Preliminary
Memorandum, the Memorandum, the Diskette or in any revision or
amendment of or
supplement to any of the foregoing, (B) any Time of Sale
Information or any
Issuer Information contained in any Free Writing Prospectus
prepared by or on
behalf of the Underwriters (an "Underwriter Free Writing
Prospectus") or
contained in any Free Writing Prospectus which is required to be
filed in
accordance with the terms of the Underwriting Agreement, (C) any
items similar
to Free Writing Prospectuses forwarded by the Seller to the Initial
Purchaser,
or in any revision or amendment of or supplement to any of the
foregoing or (D)
the summaries, reports, documents and other written and computer
materials and
all other information regarding the Mortgage Loan or the Seller
furnished by the
Seller for review by prospective investors (the items in (A), (B),
(C) and (D)
above being defined as the "Disclosure Material"), or (iv) arise
out of or are
based upon the omission or alleged omission to state therein (in
the case of
Free Writing Prospectuses, when read in conjunction with the other
Time of Sale
Information, in the case of any items similar to Free Writing
Prospectuses, when
read in conjunction with the Memorandum) and in the case of any
summaries,
reports, documents, written or computer materials, or other
information
contemplated in clause (D) above, when read in conjunction with the
Memorandum
and in the case of any Free Writing Prospectus, when read in
conjunction with
the other Time of Sale Information, a material fact required to be
stated
therein or necessary to make the statements therein, in the light
of the
circumstances under which they were made, not misleading; but, with
respect to
any Disclosure Material described in clauses (A), (B) and (C) of
the definition
thereof, only if and to the extent that (I) any such untrue
statement or alleged
untrue statement or omission or alleged omission occurring in, or
with respect
to, such Disclosure Material, arises out of or is based upon an
untrue statement
or omission with respect to the Mortgage Loan, the related
Mortgagors and/or the
related Mortgaged Properties contained in the Data File (it being
herein
acknowledged that the Data File was and will be used to prepare the
Preliminary
Prospectus Supplement and the Prospectus Supplement, including
without
limitation Annex A thereto, any other Time of Sale Information, the
Preliminary
Memorandum, the Memorandum and the Diskette with respect to the
Registered
Certificates and any items similar to Free Writing Prospectuses
forwarded to
prospective investors in the Non-Registered Certificates and any
Free Writing
Prospectus), (II) any such untrue statement or alleged untrue
statement or
omission or alleged omission of a material fact occurring in, or
with respect
to, such Disclosure Material, is with respect to, or arises out of
or is based
upon an untrue statement or omission of a material fact with
respect to, the
information regarding the Mortgage Loan, the related Mortgagors,
the related
Mortgaged Properties and/or the Seller set forth in the Specified
Portions of
the Preliminary Prospectus Supplement, the Prospectus Supplement,
the
Preliminary Memorandum or the Memorandum, (III) any such untrue
statement or
alleged untrue statement or omission or alleged omission occurring
in, or with
respect to, such Disclosure Material, arises out of or is based
upon a breach of
the representations and warranties of the Seller set forth in or
made pursuant
to Section 3 hereof or (IV) any such untrue statement or alleged
untrue
statement or omission or alleged omission occurring in, or with
respect to, such
Disclosure Material, arises out of or is based upon any other
written
information concerning the characteristics of the Mortgage Loan,
the related
Mortgagors or the related Mortgaged Properties furnished to the
Purchaser, the
Underwriters or the Initial Purchaser by the Seller; provided, that
the
indemnification provided by this Section 7 shall not apply to the
extent that
such untrue statement or omission of a material fact was made as a
result of an
error in the manipulation of, or in any calculations based upon, or
in any
aggregation of the information regarding the Mortgage Loan, the
related
Mortgagors and/or the related Mortgaged Properties set forth in the
Data File or
Annex A to the Preliminary Prospectus Supplement or the Prospectus
Supplement to
the extent such information was not materially incorrect in the
Data File or
such Annex A, as applicable, including without limitation the
aggregation of
such information with comparable information relating to the Other
Mortgage
Loans. Notwithstanding the foregoing, the indemnification provided
in this
Section 7(a) shall not inure to the benefit of any Underwriter or
Initial
Purchaser (or to the benefit of any person controlling such
Underwriter or
Initial Purchaser) from whom the person asserting claims giving
rise to any such
losses, claims, damages, expenses or liabilities purchased
Certificates if (x)
the subject untrue statement or omission or alleged untrue
statement or omission
made in any Disclosure Material (exclusive of the Prospectus or any
corrected or
amended Prospectus or the Memorandum or any corrected or amended
Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum or, with
respect to
any Time of Sale Information only, by the delivery of a Corrected
Free Writing
Prospectus prior to the Time of Sale (in each case, as corrected or
amended, if
applicable), as applicable, and (y) a copy of the Prospectus,
Memorandum or
Corrected Free Writing Prospectus (in each case, as corrected or
amended, if
applicable), as applicable, shall not have been sent to such person
at or prior
to the Time of Sale of such Certificates, and (z) in the case of a
corrected or
amended Prosp
