Exhibit 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
SUNTRUST LOANS
Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
March 1, 2007, between SunTrust Bank (the "Seller"), and Morgan
Stanley Capital
I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to
purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage
Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a
trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the
"Pooling and
Servicing Agreement"), dated as of March 1, 2007, between the
Purchaser, as
depositor, Wells Fargo Bank, N.A. as General Master Servicer, LNR
Partners,
Inc., as General Special Servicer, NCB, FSB, as NCB Master
Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer and U.S. Bank
National
Association as Trustee, Paying Agent, and Certificate Registrar. In
exchange for
the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans")
to be purchased by the Purchaser, the Trust will issue to the
Depositor
pass-through certificates to be known as Morgan Stanley Capital I
Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ13
(the
"Certificates"). The Certificates will be issued pursuant to the
Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Pooling and Servicing
Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-NM, Class A-3,
Class
A-AB, Class A-4, Class A-M, Class A-MFL and Class A-J Certificates
(the "Public
Certificates") will be sold by the Purchaser to Morgan Stanley
& Co.
Incorporated, Banc of America Securities LLC, Natixis Securities
North America
Inc. (formerly IXIS Securities North America Inc.), Merrill Lynch,
Pierce,
Fenner & Smith Incorporated and SunTrust Capital Markets, Inc.
(collectively,
the "Underwriters"), pursuant to an Underwriting Agreement, between
the
Purchaser and the Underwriters, dated March 22, 2007 (the
"Underwriting
Agreement"), and the Class X-1, Class X-Y, Class B, Class C, Class
D, Class E
and Class F Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class
O, Class P, Class Q, Class S, Class EI, Class R-I, Class R-II and
Class R-III
Certificates (collectively, the "Private Certificates") will be
sold by the
Purchaser to Morgan Stanley & Co. Incorporated (in such
capacity, the "Initial
Purchaser") pursuant to a Certificate Purchase Agreement, between
the Purchaser
and the Initial Purchaser, dated March 22, 2007 (the "Certificate
Purchase
Agreement"). The Underwriters will offer the Public Certificates
for sale
publicly pursuant to a Prospectus dated February 6, 2007, as
supplemented by a
Prospectus Supplement dated March 22, 2007 (together, the
"Prospectus
Supplement"), and the Initial Purchaser will offer the Private
Certificates
(other than the Class EI, Class R-I, Class R-II and Class R-III
Certificates)
for sale in transactions exempt from the registration requirements
of the
Securities Act of 1933 pursuant to a Private Placement Memorandum,
dated as of
March 22, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, on a servicing released basis, the
Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off
Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in
the month of
March 2007. The Mortgage Loans and the Other Mortgage Loans will
have an
aggregate principal balance as of the close of business on the
Cut-Off Date,
after giving effect to any payments due on or before such date,
whether or not
received, of $193,052,720. The sale of the Mortgage Loans shall
take place on
March 29, 2007 or such other date as shall be mutually acceptable
to the parties
hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for
the Mortgage Loans shall equal the amount set forth as such
purchase price on
Exhibit 3 hereto. The purchase price shall be paid to the Seller by
wire
transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right,
title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed
to such
right, title and interest in and to the Mortgage Loans and the
Purchaser's
rights under this Agreement (to the extent set forth in Section
15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to receipt of the consideration referred to in
Section 1
hereof and the satisfaction of the conditions specified in Sections
6 and 7
hereof, the Seller does hereby transfer, assign, set over and
otherwise convey
to the Purchaser, without recourse, all the right, title and
interest of the
Seller, with the understanding that a Servicing Rights Purchase
Agreement, dated
March 29, 2007, will be executed by the Seller and the General
Master Servicer,
in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of the
Closing Date. The Mortgage Loan Schedule, as it may be amended from
time to time
on or prior to the Closing Date, shall conform to the requirements
of this
Agreement and the Pooling and Servicing Agreement. In connection
with such
transfer and assignment, the Seller shall deliver to or on behalf
of the
Trustee, on behalf of the Purchaser, on or prior to the Closing
Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage
Loan and on
or prior to the fifth Business Day after the Closing Date, five
limited powers
of attorney substantially in the form attached hereto as Exhibit 5
in favor of
the Trustee, the applicable Master Servicer and the Special
Servicer to empower
the Trustee, the applicable Master Servicer and, in the event of
the failure or
incapacity of the Trustee and the applicable Master Servicer, the
Special
Servicer, to submit for recording, at the expense of the Seller,
any mortgage
loan documents required to be recorded as described in the Pooling
and Servicing
Agreement and any intervening assignments with evidence of
recording thereon
that are required to be included in the Mortgage Files (so long as
original
counterparts have previously been delivered to the Trustee). The
Seller agrees
to reasonably cooperate with the Trustee, the applicable Master
Servicer and the
Special Servicer in connection with any additional powers of
attorney or
revisions thereto that are requested by such parties for purposes
of such
recordation. The parties hereto agree that no such power of
attorney shall be
used with respect to any Mortgage Loan by or under authorization by
any party
hereto except to the extent that the absence of a document
described in the
second preceding sentence with respect to such Mortgage Loan
remains unremedied
as of the earlier of (i) the date that is 180 days following the
delivery of
notice of such absence to the Seller, but in no event earlier than
18 months
from the Closing Date, and (ii) the date (if any) on which such
Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall
submit such
documents for recording, at the Seller's expense, after the periods
set forth
above; provided, however, the Trustee shall not submit such
assignments for
recording if the Seller produces evidence that it has sent any such
assignment
for recording and certifies that the Seller is awaiting its return
from the
applicable recording office. In addition, not later than the 30th
day following
the Closing Date, the Seller shall deliver to or on behalf of the
Trustee each
of the remaining documents or instruments specified below (with
such exceptions
and additional time periods as are permitted by this Section) with
respect to
each Mortgage Loan (each, a "Mortgage File"). (The Seller
acknowledges that the
term "without recourse" does not modify the duties of the Seller
under Section 5
hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in
escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage
Files shall
be released from escrow upon closing of the sale of the Mortgage
Loans and
payments of the purchase price therefor as contemplated hereby. The
Mortgage
File for each Mortgage Loan shall contain the following
documents:
(a) The original Mortgage Note bearing all intervening
endorsements,
endorsed in blank or endorsed "Pay to the order of U.S. Bank
National
Association, as Trustee for Morgan Stanley Capital I Inc.,
Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ13, without recourse,
representation or
warranty" or if the original Mortgage Note is not included therein,
then a lost
note affidavit and indemnity, with a copy of the Mortgage Note
attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a power of attorney, a
certified true
copy of the power of attorney certified by the public recorder's
office, with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed), or certified by a title
insurance
company or escrow company to be a true copy thereof; provided that
if such
original Mortgage cannot be delivered with evidence of recording
thereon on or
prior to the 90th day following the Closing Date because of a delay
caused by
the public recording office where such original Mortgage has been
delivered for
recordation or because such original Mortgage has been lost, the
Seller shall
deliver or cause to be delivered to the Trustee a true and correct
copy of such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate (as defined below) of
the Seller
stating that such original Mortgage has been sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original Mortgage
that has been lost after recordation, a certification by the
appropriate county
recording office where such Mortgage is recorded that such copy is
a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon (if applicable) or if any such
original
modification, consolidation or extension agreement has been
delivered to the
appropriate recording office for recordation and either has not yet
been
returned on or prior to the 90th day following the Closing Date
with evidence of
recordation thereon or has been lost after recordation, a true copy
of such
modification, consolidation or extension certified by the Seller
together with
(i) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the Seller stating that such original modification,
consolidation
or extension agreement has been dispatched or sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original
modification, consolidation or extension agreement that has been
lost after
recordation, a certification by the appropriate county recording
office where
such document is recorded that such copy is a true and complete
copy of the
original recorded modification, consolidation or extension
agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan,
in
form and substance acceptable for recording (except for recording
information
not yet available if the instrument being recorded has not been
returned from
the applicable recording office), signed by the holder of record in
blank or in
favor of "U.S. Bank National Association, as Trustee for Morgan
Stanley Capital
I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ13";
(e) Originals of all intervening assignments of Mortgage, if
any,
with evidence of recording thereon or, if such original assignments
of Mortgage
have been delivered to the appropriate recorder's office for
recordation,
certified true copies of such assignments of Mortgage certified by
the Seller,
or in the case of an original blanket intervening assignment of
Mortgage
retained by the Seller, a copy thereof certified by the Seller or,
if any
original intervening assignment of Mortgage has not yet been
returned on or
prior to the 90th day following the Closing Date from the
applicable recording
office or has been lost, a true and correct copy thereof, together
with (i) in
the case of a delay caused by the public recording office, an
Officer's
Certificate of the Seller stating that such original intervening
assignment of
Mortgage has been sent to the appropriate public recording official
for
recordation or (ii) in the case of an original intervening
assignment of
Mortgage that has been lost after recordation, a certification by
the
appropriate county recording office where such assignment is
recorded that such
copy is a true and complete copy of the original recorded
intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence
of recording
thereon or certified by a title insurance company or escrow company
to be a true
copy thereof; provided that if such Assignment of Leases has not
been returned
on or prior to the 90th day following the Closing Date because of a
delay caused
by the applicable public recording office where such Assignment of
Leases has
been delivered for recordation or because such original Assignment
of Leases has
been lost, the Seller shall deliver or cause to be delivered to the
Trustee a
true and correct copy of such Assignment of Leases submitted for
recording,
together with, (i) in the case of a delay caused by the public
recording office,
an Officer's Certificate (as defined below) of the Seller stating
that such
Assignment of Leases has been sent to the appropriate public
recording official
for recordation or (ii) in the case of an original Assignment of
Leases that has
been lost after recordation, a certification by the appropriate
county recording
office where such Assignment of Leases is recorded that such copy
is a true and
complete copy of the original recorded Assignment of Leases, in
each case
together with an original assignment of such Assignment of Leases,
in recordable
form (except for recording information not yet available if the
instrument being
recorded has not been returned from the applicable recording
office), signed by
the holder of record in favor of "U.S. Bank National Association,
as Trustee for
Morgan Stanley Capital I Inc., Commercial Mortgage Pass-Through
Certificates,
Series 2007-IQ13," which assignment may be effected in the related
Assignment of
Mortgage;
(g) The original
or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder,
actual
"marked-up" title commitment, pro forma policy, or an agreement to
provide any
of the foregoing pursuant to binding escrow instructions executed
by the title
company or its authorized agent with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a copy of any of the
foregoing
certified by the title company with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a preliminary title
report with
the original Title Insurance Policy to follow within 180 days of
the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and
(B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements
to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage
Loan where the Mortgagor is the lessee under such ground lease and
there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other
than letters of
credit representing tenant security deposits which have been
collaterally
assigned to the lender), which shall be assigned and delivered to
the Trustee on
behalf of the Trust with a copy to be held by the Primary Servicer
(or the
Master Servicer), and applied, drawn, reduced or released in
accordance with
documents evidencing or securing the applicable Mortgage Loan, the
Pooling and
Servicing Agreement and the Primary Servicing Agreement or (B) the
original of
each letter of credit, if any, constituting additional collateral
for such
Mortgage Loan (other than letters of credit representing tenant
security
deposits which have been collaterally assigned to the lender),
which shall be
held by the applicable Primary Servicer (or the Master Servicer) on
behalf of
the Trustee, with a copy to be held by the Trustee, and applied,
drawn, reduced
or released in accordance with documents evidencing or securing the
applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement (it being understood that the Seller has agreed (a) that
the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or
before the
Closing Date, the bank issuing the letter of credit that the letter
of credit
and the proceeds thereof belong to the Trust, and to use reasonable
efforts to
obtain within 30 days (but in any event to obtain within 90 days)
following the
Closing Date, an acknowledgement thereof by the bank (with a copy
of such
acknowledgement to be sent to the Trustee) and (c) to indemnify the
Trust for
any liabilities, charges, costs, fees or other expenses accruing
from the
failure of the Seller to assign the letter of credit hereunder). In
the case of
clause (B) above, any letter of credit held by the applicable
Primary Servicer
(or Master Servicer) shall be held in its capacity as agent of the
Trust, and if
the applicable Primary Servicer (or Master Servicer) sells its
rights to service
the applicable Mortgage Loan, the applicable Primary Servicer (or
Master
Servicer) has agreed to assign the applicable letter of credit to
the Trust or
at the direction of the Special Servicer to such party as the
Special Servicer
may instruct, in each case, at the expense of the applicable
Primary Servicer
(or Master Servicer). The applicable Primary Servicer (or Master
Servicer) has
agreed to indemnify the Trust for any loss caused by the
ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity
agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for
all
hotels and for such other Mortgaged Properties securing Mortgage
Loans with a
Cut-Off Date principal balance equal to or greater than
$20,000,000;
(o) The original of any Environmental Insurance Policy or, if
the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor
of the lender;
(q) With respect to hospitality properties, a copy of any
franchise
agreement, franchise comfort letter and applicable assignment or
transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one
or
more of the Chairman of the Board, any Vice Chairman, the
President, any Senior
Vice President, any Vice President, any Assistant Vice President,
any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and
assignment of Assignment of Leases referred to in clauses (d), (e)
and (f) may
be in the form of a single instrument assigning the Mortgage and
the Assignment
of Leases to the extent permitted by applicable law. To avoid the
unnecessary
expense and administrative inconvenience associated with the
execution and
recording or filing of multiple assignments of mortgages,
assignments of leases
(to the extent separate from the mortgages) and assignments of UCC
financing
statements, the Seller shall execute, in accordance with the third
succeeding
paragraph, the assignments of mortgages, the assignments of leases
(to the
extent separate from the mortgages) and the assignments of UCC
financing
statements relating to the Mortgage Loans naming the Trustee on
behalf of the
Certificateholders as assignee. Notwithstanding the fact that such
assignments
of mortgages, assignments of leases (to the extent separate from
the assignments
of mortgages) and assignments of UCC financing statements shall
name the Trustee
on behalf of the Certificateholders as the assignee, the parties
hereto
acknowledge and agree that the Mortgage Loans shall for all
purposes be deemed
to have been transferred from the Seller to the Purchaser and from
the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, any of the documents and/or instruments referred to
in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because
of a delay
caused by the public recording office where such document or
instrument has been
delivered for recordation within such 90-day period, but the Seller
delivers a
photocopy thereof (to the extent available, certified by the
appropriate county
recorder's office to be a true and complete copy of the original
thereof
submitted for recording or, if such certification is not available,
together
with an Officer's Certificate of the Seller stating that such
document has been
sent to the appropriate public recording official for recordation),
to the
Trustee within such 90-day period, the Seller shall then deliver
within 180 days
after the Closing Date the recorded document (or within such longer
period after
the Closing Date as the Trustee may consent to, which consent shall
not be
withheld so long as the Seller is, as certified in writing to the
Trustee no
less often than monthly, in good faith attempting to obtain from
the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall
be
entitled to all scheduled payments of principal due thereon after
the Cut-Off
Date, all other payments of principal collected after the Cut-Off
Date (other
than scheduled payments of principal due on or before the Cut-Off
Date), and all
payments of interest on the Mortgage Loans allocable to the period
commencing on
the Cut-Off Date. All scheduled payments of principal and interest
due on or
before the Cut-Off Date and collected after the Cut-Off Date shall
belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver
and the Purchaser, the Trustee or the agents of either may submit
or cause to be
submitted for recordation at the expense of the Seller, in the
appropriate
public office for real property records, each assignment referred
to in clauses
(d) and (f)(ii) above (with recording information in blank if such
information
is not yet available). Within 15 days following the Closing Date,
the Seller
shall deliver and the Purchaser, the Trustee or the agents of
either may submit
or cause to be submitted for filing, at the expense of the Seller,
in the
appropriate public office for Uniform Commercial Code financing
statements, the
assignment referred to in clause (i) above. If any such document or
instrument
is lost or returned unrecorded or unfiled, as the case may be,
because of a
defect therein, the Seller shall prepare a substitute therefor or
cure such
defect, and the Seller shall, at its own expense (except in the
case of a
document or instrument that is lost by the Trustee), record or
file, as the case
may be, and deliver such document or instrument in accordance with
this Section
2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise
agreement
and each Mortgage Loan secured by a Mortgaged Property with respect
to which a
letter of credit is in place, the Seller shall provide a notice on
or prior to
the date that is thirty (30) days after the Closing Date to the
franchisor or
the issuing financial institution, as applicable, of the transfer
of such
Mortgage Loan to the Trust pursuant to the Pooling and Servicing
Agreement, and
inform such parties that any notices to the Mortgagor's lender
pursuant to such
franchise agreement or letter of credit should thereafter be
forwarded to the
Master Servicer and, with respect to each franchise agreement,
provide a
franchise comfort letter to the franchisor on or prior to the date
that is
thirty (30) days after the Closing Date. After the Closing Date,
with respect to
any letter of credit that has not yet been assigned to the Trust,
upon the
written request of the Master Servicer or the applicable Primary
Servicer, the
Seller will draw on such letter of credit as directed by the Master
Servicer or
such Primary Servicer in such notice to the extent the Seller has
the right to
do so.
Documents that are in the possession of the Seller, its agents
or
its subcontractors that relate to the servicing of any Mortgage
Loans and that
are not required to be a part of the Mortgage File and are
reasonably necessary
for the ongoing administration and/or servicing of the applicable
Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at
the direction
of the Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day
after the Closing Date, in accordance with the Primary Servicing
Agreement, if
applicable.
The Servicing File shall include, to the extent required to be
(and
actually) delivered to the Seller pursuant to the applicable
Mortgage Loan
documents, copies of the following items: the Mortgage Note, any
Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity
agreement, any loan agreement, the insurance policies or
certificates, as
applicable, the property inspection reports, any financial
statements on the
property, any escrow analysis, the tax bills, the Appraisal, the
environmental
report, the engineering report, the asset summary, financial
information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreements and any Environmental Insurance Policies; provided,
however, the
Seller shall not be required to deliver any draft documents,
attorney-client
privileged communications, internal correspondence or credit
analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be
deemed a
delivery to the Master Servicer and satisfy Seller's obligations
under this
sub-paragraph. Each of the foregoing items shall be delivered by
the Seller in
electronic form, to the extent such document is available in such
form and such
form is reasonably acceptable to the Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and
the other contents of the related Mortgage File shall be vested in
the Purchaser
and its assigns, and the ownership of all records and documents
with respect to
the related Mortgage Loan prepared by or that come into the
possession of the
Seller shall immediately vest in the Purchaser and its assigns, and
shall be
delivered promptly by the Seller to or on behalf of either the
Trustee or the
Master Servicer as set forth herein, subject to the requirements of
the Primary
Servicing Agreement. The Seller's and Purchaser's records shall
reflect the
transfer of each Mortgage Loan from the Seller to the Purchaser and
its assigns
as a sale.
It
is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the
Seller as
provided in this Section 2 be, and be construed as, an absolute
sale of the
Mortgage Loans and related property. It is, further, not the
intention of the
parties that such conveyance be deemed a pledge of the Mortgage
Loans and
related property by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller. However, in the event that,
notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held
to be the
property of the Seller, or if for any other reason this Agreement
is held or
deemed to create a security interest in the Mortgage Loans or any
related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed
to be a
grant by the Seller to the Purchaser of a security interest in
all
of the
Seller's right, title, and interest, whether now owned or
hereafter
acquired,
in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit and
investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the
Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance
policies,
all distributions with respect thereto payable after the
Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit,
investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other
Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit,
advices of
credit, instruments, money, documents, chattel paper or
certificated securities
shall be deemed to be possession by the secured party or possession
by a
purchaser for purposes of perfecting the security interest pursuant
to the
Uniform Commercial Code (including, without limitation, Sections
9-305 and 9-313
thereof) as in force in the relevant jurisdiction. Notwithstanding
the
foregoing, the Seller makes no representation or warranty as to the
perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments,
receipts, or confirmations from persons holding such property,
shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from,
securities intermediaries, bailees or agents of, or Persons holding
for, the
Purchaser or its designee, as applicable, for the purpose of
perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take
such reasonable actions as may be necessary to ensure that, if this
Agreement
were deemed to create a security interest in the property described
above, such
security interest would be deemed to be a perfected security
interest of first
priority under applicable law and will be maintained as such
throughout the term
of the Agreement. In such case, the Seller shall file all filings
necessary to
maintain the effectiveness of any original filings necessary under
the Uniform
Commercial Code as in effect in any jurisdiction to perfect such
security
interest in such property. In connection herewith, the Purchaser
shall have all
of the rights and remedies of a secured party and creditor under
the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to
purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause (a)
above) or lost note affidavit and indemnity required to be
delivered to or on
behalf of the Trustee or the Master Servicer pursuant to this
Section 2 on or
before the Closing Date is not so delivered, or is not properly
executed or is
defective on its face, and the Purchaser's acceptance of the
related Mortgage
Loan on the Closing Date shall in no way constitute a waiver of
such omission or
defect or of the Purchaser's or its successors' and assigns' rights
in respect
thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall (i) deliver to the Purchaser on or before the
Closing Date a
diskette acceptable to the Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by the Purchaser,
(ii) deliver to
the Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at the Purchaser's headquarters in New York, and (iii)
otherwise
cooperate fully with the Purchaser in its examination of the credit
files,
underwriting documentation and Mortgage Files for the Mortgage
Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser
has
conducted or has failed to conduct any partial or complete
examination of the
credit files, underwriting documentation or Mortgage Files for the
Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to
cause the
Seller to cure any Material Document Defect or Material Breach
(each as defined
below), or to repurchase or replace the defective Mortgage Loans
pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the
Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency
to examine
and audit all books, records and files pertaining to the Mortgage
Loans, the
Seller's underwriting procedures and the Seller's ability to
perform or observe
all of the terms, covenants and conditions of this Agreement. Such
examinations
and audits shall take place at one or more offices of the Seller
during normal
business hours and shall not be conducted in a manner that is
disruptive to the
Seller's normal business operations upon reasonable prior advance
notice. In the
course of such examinations and audits, the Seller will make
available to such
representatives of any of the Purchaser, each Underwriter, the
Initial
Purchaser, the Trustee, the Special Servicer and each Rating Agency
reasonably
adequate facilities, as well as the assistance of a sufficient
number of
knowledgeable and responsible individuals who are familiar with the
Mortgage
Loans and the terms of this Agreement, and the Seller shall
cooperate fully with
any such examination and audit in all material respects. On or
prior to the
Closing Date, the Seller shall provide the Purchaser with all
material
information regarding the Seller's financial condition and access
to
knowledgeable financial or accounting officers for the purpose of
answering
questions with respect to the Seller's financial condition,
financial statements
as provided to the Purchaser or other developments affecting the
Seller's
ability to consummate the transactions contemplated hereby or
otherwise
affecting the Seller in any material respect. Within 45 days after
the Closing
Date, the Seller shall provide the Master Servicer or Primary
Servicer, if
applicable, with any additional information identified by the
Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA
Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through
one
or more designees or agents; provided the Purchaser has provided
the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the
Seller and the Mortgage Loans that has been delivered into the
Purchaser's
possession and that is not otherwise publicly available; provided,
however, that
such information shall not be kept confidential (and the right to
require
confidentiality under any confidentiality agreement is hereby
waived) to the
extent such information is required to be included in the
Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court
order to
disclose such information. If the Purchaser is required to disclose
in the
Memorandum or the Prospectus Supplement confidential information
regarding the
Seller as described in the preceding sentence, the Purchaser shall
provide to
the Seller a copy of the proposed form of such disclosure prior to
making such
disclosure and the Seller shall promptly, and in any event within
two Business
Days, notify the Purchaser of any inaccuracies therein, in which
case the
Purchaser shall modify such form in a manner that corrects such
inaccuracies. If
the Purchaser is required by law or court order to disclose
confidential
information regarding the Seller as described in the second
preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's
efforts to
obtain a protective order or other reasonable assurance that
confidential
treatment will be accorded such information and, if in the absence
of a
protective order or such assurance, the Purchaser is compelled as a
matter of
law to disclose such information, the Purchaser shall, prior to
making such
disclosure, advise and consult with the Seller and its counsel as
to such
disclosure and the nature and wording of such disclosure and the
Purchaser shall
use reasonable efforts to obtain confidential treatment
therefor.
Notwithstanding the foregoing, if reasonably advised by counsel
that the
Purchaser is required by a regulatory agency or court order to make
such
disclosure immediately, then the Purchaser shall be permitted to
make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller
hereby makes for the benefit of the Purchaser and its assigns with
respect to
each Mortgage Loan as of the date hereof (or as of such other date
specifically
set forth in the particular representation and warranty) each of
the
representations and warranties set forth on Exhibit 2 hereto,
except as
otherwise set forth on Schedule A attached hereto, and hereby
further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Georgia. The
Seller has
the requisite power and authority and legal right to own the
Mortgage
Loans and to transfer and convey the Mortgage Loans to the
Purchaser
and has the requisite power and authority to execute and
deliver,
engage in the transactions contemplated by, and perform and
observe
the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Seller, and assuming the due authorization,
execution
and
delivery hereof by the Purchaser, this Agreement constitutes
the
valid,
legal and binding agreement of the Seller, enforceable in
accordance
with its terms, except as such enforcement may be limited by
(A) laws
relating to bankruptcy, insolvency, reorganization,
receivership
or
moratorium, (B) other laws relating to or affecting the rights
of
creditors
generally, (C) general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law) or
(D)
public
policy considerations underlying the securities laws, to the
extent
that such public
policy considerations limit the enforceability of the
provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or
the
consummation by the Seller of any transaction contemplated hereby,
other
than (1)
such qualifications as may be required under state securities
or
blue sky
laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary
in
connection
with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such
consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4)
where the
lack of
such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse
effect on
the
performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser,
nor the
execution, delivery or performance of this Agreement by the
Seller,
conflicts or will conflict with, results or will result in a
breach of,
or constitutes or will constitute a default under (A) any term
or
provision of the Seller's articles of incorporation or by-laws, (B)
any
term or
provision of any material agreement, contract, instrument or
indenture
to which the Seller is a party or by which it or any of its
assets is
bound or results in the creation or imposition of any lien,
charge or
encumbrance upon any of its property pursuant to the terms of
any such
indenture, mortgage, contract or other instrument, other than
pursuant
to this Agreement, or (C) after giving effect to the consents
or
taking of
the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any
court or
governmental authority having jurisdiction over the Seller or its
assets,
except
where in any of the instances contemplated by clauses (B) or
(C)
above, any
conflict, breach or default, or creation or imposition of any
lien,
charge or encumbrance, will not have a material adverse effect
on
the
consummation of the transactions contemplated hereby by the Seller
or
materially
and adversely affect its ability to perform its obligations and
duties
hereunder or result in any material adverse change in the
business,
operations, financial condition, properties or assets of the
Seller, or in
any
material impairment of the right or ability of the Seller to carry
on
its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations
of, the
Seller pending or, to the Seller's knowledge, threatened in
writing
against the Seller before any court, administrative agency or
other
tribunal, the outcome of which could reasonably be expected to
materially
and adversely affect the transfer of the Mortgage Loans to the
Purchaser
or the execution or delivery by, or enforceability against, the
Seller of
this Agreement or have an effect on the financial condition of
the Seller
that would materially and adversely affect the ability of the
Seller to
perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to
this
Agreement will effect a transfer by the Seller of all of its
right,
title and
interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information
(as
defined in
that certain indemnification agreement, dated as of March 22,
2007,
between the Seller, the Purchaser, the Underwriters and the
Initial
Purchaser
(the "Indemnification Agreement")) contained in the Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum
and the
Prospectus Supplement (i) does not contain any untrue statement
of
a material
fact or omit to state a material fact necessary to make the
statements
therein, in the light of the circumstances under which they
were made,
not misleading and (ii) (other than the Memorandum) complies
with the
requirements of and contains all of the applicable information
required
by Regulation AB (as defined in the Indemnification Agreement).
To induce the Purchaser to enter into this Agreement, the
Seller
hereby covenants that the foregoing representations and warranties
and those set
forth on Exhibit 2 hereto will be true and correct in all material
respects on
and as of the Closing Date with the same effect as if made on the
Closing Date,
provided that any representations and warranties made as of a
specified date
shall be true and correct in all material respects as of such
specified date.
Each of the representations, warranties and covenants made by
the
Seller pursuant to this Section 4(a) shall survive the sale of the
Mortgage
Loans and shall continue in full force and effect notwithstanding
any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser
hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing,
and in good standing under the laws of the State of Delaware
with full power
and authority to carry on its business as presently
conducted
by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage
Loans, to execute and deliver this Agreement and to enter into
and
consummate all transactions contemplated by this Agreement. The
Purchaser
has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed
and
delivered
this Agreement. This Agreement, assuming due authorization,
execution
and delivery by the Seller, constitutes the valid and binding
obligation
of the Purchaser, enforceable against it in accordance with its
terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting
the
enforcement of creditors' rights generally and by general
principles
of equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(xi) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement,
or the
consummation by the Purchaser of any transaction contemplated
hereby that
has not
been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the
execution,
delivery
and performance of this Agreement by the Purchaser will violate
the
Purchaser's certificate of incorporation or by-laws or constitute
a
default
(or an event that, with notice or lapse of time or both, would
constitute
a default) under, or result in a breach of, any material
agreement,
contract, instrument or indenture to which the Purchaser is a
party or
that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement
and
its
performance and compliance with the terms of this Agreement will
not
constitute
a violation of, any law, rule, writ, injunction, order or
decree of
any court, or order or regulation of any federal, state or
municipal
government agency having jurisdiction over the Purchaser or its
assets,
which violation could materially and adversely affect the
condition
(financial or otherwise) or the operation of the Purchaser or
its assets
or could materially and adversely affect its ability to perform
its
obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or
investigations
of, the
Purchaser pending or, to the Purchaser's knowledge, threatened
against
the Purchaser before any court, administrative agency or other
tribunal,
the outcome of which could reasonably be expected to adversely
affect the
transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this
Agreement
or have an
effect on the financial condition of the Purchaser that would
materially
and adversely affect the ability of the Purchaser to perform
its
obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment
banker,
agent or
other person, other than the Seller, the Underwriters, the
Initial
Purchaser and their respective affiliates, that may be entitled
to
any
commission or compensation in connection with the sale of the
Mortgage
Loans or
consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the
Purchaser
hereby covenants that the foregoing representations and warranties
will be true
and correct in all material respects on and as of the Closing Date
with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser
pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and
Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for
the
benefit of the Trustee on behalf of the holders of the
Certificates, whether
directly or by way of the Purchaser's assignment of its rights
hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2
hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document
required
to be delivered to the Trustee pursuant to Section 2 is not
delivered as and
when required (and including the expiration of any grace or cure
period), is not
properly executed or is defective on its face, or if there is a
breach of any of
the representations and warranties required to be made by the
Seller regarding
the characteristics of the Mortgage Loans and/or the related
Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case
such defect or
breach, either (i) materially and adversely affects the interests
of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A)
the document
defect or breach materially and adversely affects the value of the
Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated
Mortgage Loan (such a document defect described in the preceding
clause (i) or
(ii), a "Material Document Defect" and such a breach described in
the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such
Material
Document Defect or Material Breach shall promptly notify, in
writing, the other
party; provided that any breach of the representation and warranty
contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach
only if such
prepayment premium or yield maintenance charge is not deemed
"customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax
counsel to such
effect or (ii) a determination by the Internal Revenue Service that
such
provision is not customary. Promptly (but in any event within three
Business
Days) upon becoming aware of any such Material Document Defect or
Material
Breach, the Master Servicer shall, and the Special Servicer may,
request that
the Seller, not later than 90 days from the Seller's receipt of the
notice of
such Material Document Defect or Material Breach, cure such
Material Document
Defect or Material Breach, as the case may be, in all material
respects;
provided, however, that if such Material Document Defect or
Material Breach, as
the case may be, cannot be corrected or cured in all material
respects within
such 90-day period, and such Material Document Defect or Material
Breach would
not cause the Mortgage Loan to be other than a "qualified mortgage"
(as defined
in the Code), but the Seller is diligently attempting to effect
such correction
or cure, as certified by the Seller in an Officer's Certificate
delivered to the
Trustee, then the cure period will be extended for an additional 90
days unless,
solely in the case of a Material Document Defect, (x) the Mortgage
Loan is, at
the end of the initial 90-day period, a Specially Serviced Mortgage
Loan and a
Servicing Transfer Event has occurred as a result of a monetary
default or as
described in clause (ii) or clause (v) of the definition of
"Servicing Transfer
Event" in the Pooling and Servicing Agreement and (y) the Material
Document
Defect was identified in a certification delivered to the Seller by
the Trustee
pursuant to Section 2.2 of the Pooling and Servicing Agreement not
less than 90
days prior to the delivery of the notice of such Material Document
Defect. The
parties acknowledge that neither delivery of a certification or
schedule of
exceptions to the Seller pursuant to Section 2.2 of the Pooling and
Servicing
Agreement or otherwise nor possession of such certification or
schedule by the
Seller shall, in and of itself, constitute delivery of notice of
any Material
Document Defect or knowledge or awareness by the Seller of any
Material Document
Defect listed therein.
The Seller hereby covenants and agrees that, if any such
Material
Document Defect or Material Breach cannot be corrected or cured in
all material
aspects within the above cure periods, the Seller shall, on or
before the
termination of such cure periods, either (i) repurchase the
affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the
Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if
within the
two-year period commencing on the Closing Date, at its option
replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such
defect relates
with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or
Material Breach would cause the Mortgage Loan to be other than a
"qualified
mortgage" (as defined in the Code), then notwithstanding the
previous sentence,
such repurchase or substitution must occur within 90 days from the
earlier of
the date the Seller discovered or was notified of the breach or
defect. The
Seller agrees that any substitution shall be completed in
accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as
contemplated
above, (ii) such Mortgage Loan is cross-collateralized and
cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the
applicable document
defect or breach does not constitute a Material Document Defect or
Material
Breach, as the case may be, as to such other Mortgage Loans
(without regard to
this paragraph), then the applicable document defect or breach (as
the case may
be) shall be deemed to constitute a Material Document Defect or
Material Breach,
as the case may be, as to each such other Mortgage Loan for
purposes of the
above provisions, and the Seller shall be obligated to repurchase
or replace
each such other Mortgage Loan in accordance with the provisions
above, unless,
in the case of such breach or document defect, both of the
following conditions
would be satisfied if the Seller were to repurchase or replace only
those
Mortgage Loans as to which a Material Breach had occurred without
regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage
ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the
four calendar
quarters immediately preceding the repurchase or replacement
(determined as
provided in the definition of Debt Service Coverage Ratio in the
Pooling and
Servicing Agreement, except that net cash flow for such four
calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x)
the debt
service coverage ratio for all such Mortgage Loans (including the
Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to
the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value
Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not
greater than
the lesser of (x) the current loan-to-value ratio for all such
Mortgage Loans
(including the Affected Loan(s)) set forth under the heading
"Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The
determination
of the Master Servicer as to whether either of the conditions set
forth above
has been satisfied shall be conclusive and binding in the absence
of manifest
error. The Master Servicer will be entitled to cause, or direct the
Seller to
cause, to be delivered to the Master Servicer at the Seller's
expense (i) an
Appraisal of any or all of the related Mortgaged Properties for
purposes of
determining whether the condition set forth in clause (2) above has
been
satisfied, in each case at the expense of the Seller if the scope
and cost of
the Appraisal is approved by the Seller (such approval not to be
unreasonably
withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of
each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted
and/or
cross-collateralized with any other Mortgage Loan conveyed
hereunder, to the
extent that the Seller is required to repurchase or substitute for
such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above
while the
Trustee (as assignee of the Purchaser) continues to hold any other
Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller
and the
Purchaser hereby agree to modify, prior to such repurchase or
substitution, the
related Mortgage Loan documents in a manner such that such affected
Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans
held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller
shall have
furnished the Trustee, at the expense of the Seller, a
nondisqualification
opinion that such modification shall not cause an Adverse REMIC
Event; provided,
further, that if such nondisqualification opinion cannot be
furnished, the
Seller and the Purchaser agree that such repurchase or substitution
of only the
Repurchased Loan, notwithstanding anything to the contrary herein,
shall not be
permitted and the Seller shall repurchase or substitute for the
Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other
cash
collateral or letters of credit securing the Cross-Collateralized
Loans shall be
allocated between such Mortgage Loans in accordance with the
Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in
full force and
effect, without any modification thereof. The Mortgagors set forth
on Schedule B
hereto are intended third-party beneficiaries of the provisions set
forth in
this paragraph and the preceding paragraph. The provisions of this
paragraph and
the preceding paragraph may not be modified with respect to any
Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any
of the following document defects shall be conclusively presumed
materially and
adversely to affect the interests of Certificateholders in a
Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage
File of the
original signed Mortgage Note, unless the Mortgage File contains a
signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii)
the absence
from the Mortgage File of the item called for by paragraph (b) of
the definition
of Mortgage File; or (iii) the absence from the Mortgage File of
the item called
for by paragraph (h) of the definition of Mortgage File. If any of
the foregoing
Material Document Defects is discovered by the Custodian (or the
Trustee if
there is no Custodian), the Trustee (or as set forth in Section
2.3(a) of the
Pooling and Servicing Agreement, the Master Servicer) will take the
steps
described elsewhere in this Section, including the giving of
notices to the
Rating Agencies and the parties hereto and making demand upon the
Seller for the
cure of the Material Document Defect or repurchase or replacement
of the related
Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material
Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect
a correction or cure of such Material Document Defect or Material
Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that
(x) the
period of time provided for the Seller to correct, repurchase or
cure has
expired and (y) the Mortgage Loan is then in default and is then a
Specially
Serviced Mortgage Loan, the Special Servicer may, subject to the
Servicing
Standard, modify, work-out or foreclose, sell or otherwise
liquidate (or permit
the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12,
Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing
Agreement, while pursuing the repurchase claim. The Seller
acknowledges and
agrees that any modification of the Mortgage Loan pursuant to such
a work-out
shall not constitute a defense to any repurchase claim nor shall
such
modification or work-out change the Purchase Price due from the
Seller for any
repurchase claim. Any sale of the Mortgage Loan, or foreclosure
upon such
Mortgage Loan and sale of the REO Property, to a Person other than
the Seller
shall be without (i) recourse of any kind (either express or
implied) by such
Person against the Seller and (ii) representation or warranty of
any kind
(either express or implied) by the Seller to or for the benefit of
such Person.
The fact that a Material Document Defect or Material Breach is
not
discovered until after foreclosure (but in all instances prior to
the sale of
the related REO Property or Mortgage Loan) shall not prejudice any
claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property.
In such an
event, the Master Servicer or Special Servicer, as applicable,
shall be required
to notify the Seller of the discovery of the Material Document
Defect or
Material Breach and the Seller shall be required to follow the
procedures set
forth in this Agreement to correct or cure such Material Document
Defect or
Material Breach or purchase the REO Property at the Purchase Price.
If the
Seller fails to correct or cure the Material Document Defect or
Material Breach
or purchase the REO Property, then the provisions above regarding
notice of
offers related to such REO Property and the Seller's right to
purchase such REO
Property shall apply. If a court of competent jurisdiction issues a
final order
that the Seller is or was obligated to repurchase the related
Mortgage Loan or
REO Mortgage Loan or the Seller otherwise accepts liability, then,
after the
expiration of any applicable appeal period, but in no event later
than the
termination of the Trust pursuant to Section 9.30 of the Pooling
and Servicing
Agreement, the Seller will be obligated to pay to the Trust the
difference
between any Liquidation Proceeds received upon such liquidation
(including those
arising from any sale to the Seller) and the Purchase Price;
provided that the
prevailing party in such action shall be entitled to recover all
costs, fees and
expenses (including reasonable attorneys' fees) related
thereto.
In connection with any liquidation or sale of a Mortgage Loan or
REO
Property as described above, the Special Servicer will not receive
a Liquidation
Fee in connection with such liquidation or sale or any portion of
the Work-Out
Fee that accrues after the Seller receives notice of a Material
Document Defect
or Material Breach until a final determination has been made, as
set forth in
the prior paragraph, as to whether the Seller is or was obligated
to repurchase
such related Mortgage Loan or REO Property. Upon such
determination, the Special
Servicer will be entitled: (i) with respect to a determination that
the Seller
is or was obligated to repurchase, to collect a Liquidation Fee, if
due in
accordance with the definition thereof, based upon the full
Purchase Price of
the related Mortgage Loan or REO property, with such Liquidation
Fee payable by
the Seller or (ii) with respect to a determination that Seller is
not or was not
obligated to repurchase (or the Trust decides that it will no
longer pursue a
claim against the Seller for repurchase), (A) to collect a
Liquidation Fee based
upon the Liquidation Proceeds as received upon the actual sale or
liquidation of
such Mortgage Loan or REO Property, and (B) to collect any accrued
and unpaid
Work-Out Fee, based on amounts that were collected for as long as
the related
Mortgage Loan was a Rehabilitated Mortgage Loan, in each case with
such amount
to be paid from amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to
cure
a Material Document Defect or a Material Breach or repurchase or
replace a
defective Mortgage Loan constitute the sole remedies of the
Purchaser or its
assignees with respect to a Material Document Defect or Material
Breach in
respect of an outstanding Mortgage Loan; provided, that this
limitation shall
not in any way limit the Purchaser's rights or remedies upon breach
of any other
representation or warranty or covenant by the Seller set forth in
this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a
breach
of the representation and warranty set forth in paragraph 41 of
Exhibit 2
attached hereto because the underlying loan documents do not
provide for the
payment by the Mortgagor of reasonable costs and expenses
associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the
Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to
the extent an
amount is due and not paid by the related Mortgagor. The parties
hereto
acknowledge that the payment of such reasonable costs and expenses
shall be the
Seller's sole obligation with respect to the breaches discussed in
the previous
sentence. The Seller shall have no obligation to pay for any of the
foregoing
costs if the applicable Mortgagor has an obligation to pay for such
costs.
The Seller hereby agrees that it will pay for any expense
incurred
by the applicable Master Servicer or the Special Servicer, as
applicable, in
connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling
and Servicing Agreement in order for such Mortgage Loan to be a
"qualified
substitute mortgage loan" within the meaning of the Treasury
Regulations
promulgated under the Code. Upon a breach of the representation and
warranty set
forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is
modified so that it becomes a "qualified substitute mortgage loan",
such breach
will be cured and the Seller will not be obligated to repurchase or
otherwise
remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the Special Servicer
on its
behalf) shall give written notice within three Business Days to the
Seller of
its discovery of any Material Document Defect or Material Breach
and prompt
written notice to the Seller in the event that any Mortgage Loan
becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and
Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to
this
Section 5, the Purchaser or its assignee, following receipt by the
Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be
delivered to
the Seller all Mortgage Loan documents with respect to such
Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was
endorsed or
assigned to the Trustee shall be endorsed and assigned to the
Seller in the same
manner such that the Seller shall be vested with legal and
beneficial title to
such Mortgage Loan, in each case without recourse, including any
property
acquired in respect of such Mortgage Loan or proceeds of any
insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage
Loans
shall be held at the offices of Cadwalader, Wickersham & Taft
LLP, One World
Financial Center, New York, NY 10281 at 9:00 a.m., New York time,
on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall
be
subject to the satisfaction of each of the following conditions on
or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and
the
Purchaser specified in Section 4 of this Agreement (including,
without
limitation, the representations and warranties set forth on Exhibit
2 to this
Agreement) shall be true and correct as of the Closing Date,
provided that any
representations and warranties made as of a specified date shall be
true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this
Agreement,
in such forms as are agreed upon and reasonably acceptable to the
Seller or the
Purchaser, as applicable, shall be duly executed and delivered by
all
signatories as required pursuant to the res
