Exhibit 99.2
Wachovia Mortgage Loan Purchase Agreement
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of
April
1, 2007 (the "Agreement"), between Wachovia Bank, National
Association (together
with its successors and permitted assigns hereunder, the "Seller")
and CWCapital
Commercial Funding Corp. (together with its successors and
permitted assigns
hereunder, the "Purchaser"), the Seller intends to sell and the
Purchaser
intends to purchase certain multifamily and commercial mortgage
loans
(collectively, the "Mortgage Loans"), as identified on the schedule
annexed
hereto as Exhibit A (the "Mortgage Loan Schedule").
The Purchaser intends to deposit the Mortgage Loans, together
with
other assets, 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") to be identified as
the CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 2007-C2,
Commercial Mortgage
Pass-Through Certificates, Series 2007-C2. One or more "real estate
mortgage
investment conduit" ("REMIC") elections will be made with respect
to the Trust
Fund. The Certificates will be issued pursuant to a Pooling and
Servicing
Agreement (the "Pooling and Servicing Agreement"), to be dated as
of April 1,
2007, among the Purchaser, as depositor, Wachovia Bank, National
Association, as
master servicer (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 have the
respective meanings set forth in the Pooling and Servicing
Agreement, as in
effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of April 2, 2007, with Wachovia
Capital
Markets, LLC ("Wachovia"), Citigroup Global Markets Inc. ("Citi")
and Deutsche
Bank Securities Inc. ("Deutsche" and, together with Wachovia and
Citi, in such
capacity, the "Underwriters"), whereby the Purchaser will sell to
the
Underwriters all of the Certificates that are to be registered
under the
Securities Act of 1933, as amended (the "Securities Act"). The
Purchaser has
also entered into a Certificate Purchase Agreement (the
"Certificate Purchase
Agreement"), dated as of April 2, 2007, with Wachovia Capital
Markets, LLC
("Wachovia") and Citigroup Global Markets Inc. ("Citi" and,
together with
Wachovia, in such capacity, the "Initial Purchasers"), whereby the
Purchaser
will sell to the Initial Purchasers all of the remaining
Certificates (other
than the Residual Interest Certificates).
In connection with the transactions contemplated hereby, the
Seller,
the Purchaser, the Underwriters and the Initial Purchasers have
entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated
as of the
date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, the Mortgage Loans identified on the
Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the
actual
Mortgage Loans accepted by the Purchaser pursuant to the terms
hereof. The
Mortgage Loans will have an aggregate principal balance of
$813,395,733.29 (the
"Wachovia Mortgage Loan Balance") as of the close of business on,
with respect
to each Mortgage Loan, its Due Date in April, 2007 (each such date,
the
applicable "Cut-off Date"), after giving effect to any and all
payments of
principal due thereon on or before such date, whether or not
received. The
purchase and sale of the Mortgage Loans shall take place on April
13, 2007, or
such other date as shall be mutually acceptable to the parties
hereto (the
"Closing Date"). The consideration (the "Aggregate Purchase Price")
for the
Mortgage Loans shall consist of (i) a cash amount equal to
102.744947% of the
Wachovia Mortgage Loan Balance, plus (ii) $1,527,557.19, which
amount represents
the amount of interest accrued on the Wachovia 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 but does not include any
deduction for any
fees and/or expenses incurred in connection with this transaction.
The Aggregate
Purchase Price shall be paid to the Seller or its designee by wire
transfer in
immediately available funds (or by such other method as shall be
mutually
acceptable to the parties hereto) on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
purchase price referred to in Section 1 hereof and satisfaction or
waiver of the
conditions to closing set forth in Section 5 hereof, the Seller
does hereby
sell, transfer, assign, set over and otherwise convey to the
Purchaser, without
recourse, all the right, title and interest of the Seller in and to
the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date,
subject to the
rights of the holders of any related Companion Loans as specified
in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby
assumes such
Mortgage Loans, together with the rights and obligations related to
such
Mortgage Loans as specified in the related Co-Lender Agreement. The
Mortgage
Loan Schedule, as it may be amended, shall conform to the
requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights
of
the holders of any related Companion Loans, as applicable, be
entitled to
receive all scheduled payments of principal and interest due after
the Cut-off
Date, and all other recoveries of principal and interest collected
after the
Cut-off Date (other than in respect of principal and interest on
the Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of
principal
and interest due on or before the Cut-off Date for each Mortgage
Loan, but
collected after such date, shall, subject to the rights of the
holders of any
related Companion Loans, as applicable, belong to, and be promptly
remitted to,
the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf
of
the initial Purchaser, deliver to and deposit, or cause to be
delivered and
deposited, with the Trustee a Mortgage File for each Mortgage Loan
in accordance
with the terms of, and conforming to the requirements set forth in,
the Pooling
and Servicing Agreement; provided that, with respect to any
Non-Serviced Trust
Loan, the preceding delivery requirements will be satisfied by
delivery of the
original Mortgage Note (and all intervening endorsements) related
to such
Non-Serviced Trust Loan and a copy of the "mortgage file" delivered
under the
applicable Lead PSA. If the Seller cannot deliver or cause to be
delivered the
documents and/or instruments referred to in clauses (a)(ii),
(a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File"
solely because
of delay caused by the public recording office where such document
or instrument
has been delivered for recordation, the Seller shall deliver to the
Trustee a
copy of the original, certified by the Seller to be a true and
complete copy of
the original thereof submitted for recording. Concurrently with
such delivery,
the Seller shall deliver, or cause to be delivered, to the Master
Servicer and
the Special Servicer copies of the Mortgage Note, Mortgage(s) and
any reserve
and cash management agreements with respect to each Mortgage Loan
for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan for which a Mortgage File is required
to
be delivered to the Trustee, the Seller shall bear the reasonable
out-of-pocket
costs and expenses related to recording or filing, as the case may
be, in the
appropriate public office for real property records or Uniform
Commercial Code
financing statements, as appropriate, each related assignment of
Mortgage and
assignment of Assignment of Leases, in favor of the Trustee
referred to in
clause (a)(iv) of the definition of "Mortgage File" and each
related UCC-2 and
UCC-3 assignment referred to in clause (a)(viii) of the definition
of "Mortgage
File." If any such document or instrument is lost or returned
unrecorded or
unfiled, as the case may be, because of a defect therein, then the
Seller shall
prepare a substitute therefor or cure such defect or cause such to
be done, as
the case may be, and the Seller shall deliver such substitute or
corrected
document or instrument to the Trustee (or, if the Mortgage Loan is
then no
longer subject to the Pooling and Servicing Agreement, to the then
holder of
such Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the
Master Servicer within 10 business days after the Closing Date, all
documents
and records that (i) relate to the servicing and administration of
the Serviced
Loans, (ii) are reasonably necessary for the ongoing administration
and/or
servicing of the Serviced Loans and (iii) are in possession or
control of the
Seller, together with (x) all unapplied Escrow Payments and Reserve
Funds in the
possession or under control of the Seller that relate to the
Serviced Loans and
(y) a statement indicating which Escrow Payments and Reserve Funds
are allocable
to such Serviced Loans), provided that the Seller shall not be
required to
deliver any draft documents, privileged or other internal
communications, credit
underwriting, due diligence analyses or data or internal
worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action
inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for
actions that
are the express responsibility of another party hereunder or under
the Pooling
and Servicing Agreement, and further except for actions that the
Seller is
expressly permitted to complete subsequent to the Closing Date, the
Seller
shall, on or before the Closing Date, take all actions required
under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller
to the
Purchaser.
(g) The Seller shall provide, or cause to be provided,
information
necessary for the Master Servicer to produce the initial data with
respect to
each Mortgage Loan for the CMSA Financial File and the CMSA Loan
Periodic Update
File that are required to be prepared by the Master Servicer
pursuant to the
Pooling and Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the
Supplemental Servicer Schedule.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly organized
and
validly
existing under the laws of the United States of America, is
duly
qualified
as a foreign organization in good standing in all jurisdictions
to the
extent such qualification is necessary to hold and sell the
Mortgage
Loans or otherwise comply with its obligations under this
Agreement,
except where the failure to be so qualified would not have a
material
adverse effect on its ability to perform its obligations
hereunder,
and possesses all requisite authority and power 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 (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar
laws affecting the enforcement of creditors' rights in general,
and (B)
general equity principles (regardless of whether such
enforcement
is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and
the
Seller's performance and compliance with the terms of this
Agreement
will not
(A) violate the Seller's organizational documents, (B) violate
any law or
regulation or any administrative decree or order to which the
Seller is subject or
(C) constitute a default (or an event which, with
notice or
lapse of time, or both, would constitute a default) under, or
result in
the breach of, any material contract, agreement or other
instrument
to which the Seller is a party or by which the Seller is bound.
(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, in the Seller's reasonable and good faith judgment,
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 organizational document 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 and delivery of this Agreement by
the
Seller or
the performance by the Seller of its obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments
and
other
transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization
or order
of,
registration or filing with, or notice to, 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;
and no
bulk sale
law applies to such transactions.
(vii) No litigation is pending or, to the best of 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) The Seller intends to treat the transfer of the Mortgage
Loans to
the Purchaser as a sale for accounting and tax purposes. In
connection
with the foregoing, the Seller shall cause all of its records
to reflect
such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage
Loans
to the
Purchaser will constitute at least reasonably equivalent value
and
fair
consideration for the Mortgage Loans. The Seller will be solvent
at
all
relevant times prior to, and will not be rendered insolvent by,
the
sale of
the Mortgage Loans to the Purchaser. The Seller is not selling
the
Mortgage
Loans to the Purchaser with any intent to hinder, delay or
defraud
any of the creditors of the Seller. After giving effect to its
transfer
of the Mortgage Loans to the Purchaser, as provided herein, the
value of
the Seller's assets, either taken at their present fair
saleable
value or
at fair valuation, will exceed the amount of the Seller's debts
and obligations,
including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and
conduct
its
business. The Mortgage Loans do not constitute all or
substantially
all of the
assets of the Seller. The Seller does not intend to, and does
not
believe that it will, incur debts or obligations beyond its ability
to
pay such
debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or
bankruptcy
of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser,
with
respect to each Mortgage Loan, as of the Closing Date or as of such
other date
expressly set forth therein, each of the representations and
warranties set
forth on Exhibit B attached hereto, except as otherwise set forth
on Exhibit C
attached hereto.
(c) The Seller further represents and warrants that the
Mortgagor
under the Peter Cooper Village & Stuyvesant Town Mortgage Loan,
which Mortgaged
Property is a Significant Obligor, is required pursuant to Section
5.11(c) of
the related loan agreement to deliver to the related lender within
the specified
timeframes updated net operating income for the Significant Obligor
(as required
by Item 1112(b) of Regulation AB) for inclusion in each related
Form 10-D or
Form 10-K, as applicable, to be filed by the Trust.
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:
(i) The Purchaser is a corporation duly organized, validly
existing
and in
good standing under the laws of the State of Delaware. The
Purchaser
has the full corporate power and authority and legal right to
acquire
the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to
the Trustee.
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Purchaser and, assuming due authorization,
execution
and
delivery hereof by the Seller, constitutes a legal, valid and
binding
obligation
of the Purchaser, enforceable against the Purchaser in
accordance
with its terms, except as such enforcement may be limited by
(A)
bankruptcy, insolvency, reorganization, receivership, moratorium
or
other
similar laws affecting the enforcement of creditors' rights in
general,
and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the
Purchaser
and the
Purchaser's performance and compliance with the terms of this
Agreement
will not (A) violate the Purchaser's organizational documents,
(B)
violate any law or regulation or any administrative decree or order
to
which the
Purchaser is subject or (C) constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a
default)
under, or
result in the breach of, any material contract, agreement or
other
instrument to which the Purchaser is a party or by which the
Purchaser
is bound.
(iv) 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 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.
(v) Under GAAP and for federal income tax purposes, the
Purchaser
will
report the transfer of the Mortgage Loans by the Seller to the
Purchaser,
as provided herein, as a sale of the Mortgage Loans to the
Purchaser
in exchange for the consideration specified in Section 1
hereof.
(vi) None of the acquisition of the Mortgage Loans by the
Purchaser,
the
transfer of the Mortgage Loans 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 requires 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 or any
court or
governmental authority having jurisdiction over the Purchaser or
its
assets.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the
Seller.
(a) If the Seller discovers or receives notice in accordance
with
Section 10 hereof of a Document Defect or a breach of any of its
representations
and warranties made pursuant to Section 3(b) hereof (each such
breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect
or Breach
materially and adversely affects the value of the Mortgage Loan or
the related
Mortgaged Property or the interests of the Purchaser in such
Mortgage Loan (in
which case any such Document Defect or Breach would be a "Material
Document
Defect" or a "Material Breach," as the case may be), then (subject
to Section
5(b)) the Seller shall, within 90 days after its discovery or
receipt of such
notice of such Material Document Defect or Material Breach (or, in
the case of a
Material Document Defect or Material Breach that affects whether a
Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified
mortgage"
within the meaning of the REMIC Provisions (a "Qualified
Mortgage"), not later
than 90 days after any party discovering such Material Document
Defect or
Material Breach) (such 90-day period, in either case, the "Initial
Resolution
Period"), (i) cure such Material Document Defect or Material
Breach, as the case
may be, in all material respects, which cure shall include payment
of any
Additional Trust Fund Expenses associated therewith, or (ii)
repurchase the
affected Mortgage Loan (or the related Mortgaged Property, or in
the case of any
Mortgaged Property related to a Loan Group, to the extent of the
Seller's
interest therein) from, and in accordance with the directions of,
the Purchaser
or its designee, at a price equal to the Purchase Price; provided
that if (A)
any such Material Breach or Material Document Defect, as the case
may be, does
not affect whether the Mortgage Loan was, as of the Closing Date,
is or will
continue to be a Qualified Mortgage, (B) such Material Breach or
Material
Document Defect, as the case may be, is capable of being cured but
not within
the applicable Initial Resolution Period, (C) the Seller has
commenced and is
diligently proceeding with the cure of such Material Breach or
Material Document
Defect, as the case may be, within the applicable Initial
Resolution Period and
(D) the Seller shall have delivered to the Purchaser a
certification executed on
behalf of the Seller by an officer thereof confirming that such
Material Breach
or Material Document Defect, as the case may be, is not capable of
being cured
within the applicable Initial Resolution Period, setting forth what
actions the
Seller is pursuing in connection with the cure thereof and stating
that the
Seller anticipates that such Material Breach or Material Document
Defect, as the
case may be, will be cured within an additional period not to
exceed 90 days
beyond the end of the applicable Initial Resolution Period, then
the Seller
shall have such additional 90-day period (the "Resolution Extension
Period") to
complete such cure or, failing such, to repurchase the affected
Mortgage Loan
(or the related Mortgaged Property) unless, solely in the case of a
Material
Document Defect, (x) the Mortgage Loan is, at the end of the
Initial Resolution
Period, then a Specially Serviced Mortgage Loan and a Servicing
Transfer Event
has occurred as a result of a monetary default or as described in
clause (e),
clause (f) or clause (g) of the definition of "Specially Serviced
Mortgage Loan"
in the Pooling and Servicing Agreement and (y) the Material
Document Defect was
identified in a certification delivered to Seller by the Trustee
pursuant to
Section 2.02 of the Pooling and Servicing Agreement not less than
90 days prior
to the delivery of the notice of such Material Document Defect; and
provided,
further, that, if any such Material Document Defect is still not
cured after the
initial 90-day period and any such additional 90-day period solely
due to the
failure of the Seller to have received the recorded document, then
the Seller
shall be entitled to continue to defer its cure and repurchase
obligations in
respect of such Document Defect so long as the Seller certifies to
the Purchaser
every 30 days thereafter that the Document Defect is still in
effect solely
because of its failure to have received the recorded document and
that the
Seller is diligently pursuing the cure of such defect (specifying
the actions
being taken), except that no such deferral of cure or repurchase
may continue
beyond the second anniversary of the Closing Date. Any such
repurchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
The Seller
shall have no obligation to monitor the Mortgage Loans regarding
the existence
of a Breach or Document Defect, but if the Seller discovers a
Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will
notify the
Purchaser. Provided that the Master Servicer has notice of such
Material
Document Defect or Material Breach, the Master Servicer shall
notify the Seller
if the related Mortgage Loan becomes a Specially Serviced Mortgage
Loan during
any applicable cure periods. Any of the following document defects
shall be
conclusively presumed to be a Material Document Defect: (a) the
absence from the
Mortgage File of the original signed Mortgage Note, together with
the
endorsements referred to in clause (a)(i) of the definition of
"Mortgage File,"
unless the Mortgage File contains a signed lost note affidavit and
indemnity
with respect to the missing Mortgage Note and any missing
endorsement that
appears to be regular on its face, (b) other than with respect to a
Non-Serviced
Trust Loan, the absence from the Mortgage File of the original
executed Mortgage
or a copy of such Mortgage certified by the local authority with
which the
Mortgage was recorded, in each case with evidence of recording
thereon, that
appears to be regular on its face, unless there is included in the
Mortgage File
a copy of the executed Mortgage and a certificate stating that the
original
signed Mortgage was sent for recordation, (c) other than with
respect to a
Non-Serviced Trust Loan, the absence from the Mortgage File of the
original or a
copy of the lender's title insurance policy, together with all
endorsements or
riders (or copies thereof) that were issued with or subsequent to
the issuance
of such policy, or marked up insurance binder or title commitment
which is
marked as a binding commitment and countersigned by title company,
insuring the
priority of the Mortgage as a first lien on the Mortgaged Property,
(d) other
than with respect to a Non-Serviced Trust Loan, the absence from
the Mortgage
File of any intervening assignments required to create a complete
chain of
assignment to the Trustee on behalf of the Trust and a certificate
stating that
the original intervening assignments were sent for recordation,
unless there is
included in the Mortgage File a certified copy of the intervening
assignment,
(e) the absence from the Mortgage File of a copy of the ground
lease with
respect to any leasehold mortgages or (f) other than with respect
to a
Non-Serviced Trust Loan, the absence from the Servicing File of any
original
letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be
repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a
Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties,
and (z) the
applicable Material Breach of Material Document Defect does not
constitute a
Material Breach or Material Document Defect, as the case may be, as
to any
related Cross-Collateralized Mortgage Loan or applies to only
specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall
use reasonable
efforts, subject to the terms of the related Mortgage Loans, to
prepare and, to
the extent necessary and appropriate, have executed by the related
Mortgagor and
record, such documentation as may be necessary to (i) in the case
of a
Cross-Collateralized Group, terminate the cross-collateralization
between the
Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the
other hand, such
that those two groups of Mortgage Loans are each secured only by
the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly
corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio
of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if
such
Cross-Collateralized Group is still subject to the Pooling and
Servicing
Agreement, then no such termination shall be effected unless and
until (i) the
Purchaser or its designee has received from the Seller (A) an
Opinion of Counsel
to the effect that such termination or release will not cause an
Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor
Trust Event
to occur with respect to the Grantor Trust and (B) a written
confirmation from
each Rating Agency that such termination or release will not cause
an Adverse
Rating Event to occur with respect to any Class of Certificates,
(ii) the debt
service coverage ratio for the four preceding calendar quarters for
all of the
Mortgage Loans relating to such Cross-Collateralized Group
remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage
Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such
Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the
affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged
Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio
for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not
greater than
5% more than the loan-to-value ratio for all Mortgage Loans of
such
Cross-Collateralized Group or Mortgaged Properties relating to such
Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the
affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged
Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder
(if one is
acting) has consented (which consent shall not be unreasonably
withheld and
shall be deemed to have been given if no written objection is
received by the
Seller within 10 Business Days of the Directing Holder's receipt of
a written
request for such consent); and provided, further, that the Seller
may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage
Loan in lieu
of terminating the cross-collateralization or a release of the
affected
Mortgaged Properties from the cross-collateralization of the
Mortgage Loan. In
the event that the cross-collateralization of any
Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan
secured by a
portfolio of Mortgaged Properties is released pursuant to this
paragraph, the
Seller may elect either to repurchase only the affected
Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material
Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All
reasonable
costs and expenses incurred by the Purchaser or its designee
pursuant to this
paragraph shall be included in the calculation of Purchase Price
for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization
of any
Cross-Collateralized Group is not or cannot be terminated as
contemplated by
this paragraph, then, for purposes of (i) determining whether any
Breach or
Document Defect, as the case may be, is a Material Breach or
Material Document
Defect, and (ii) the application of remedies, such
Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by
the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have
executed and
delivered such instruments of endorsement, transfer or assignment
then presented
to it by the Seller, in each case without recourse, as shall be
necessary to
vest in the Seller the legal and beneficial ownership of such
Mortgage Loan
(including any property acquired in respect thereof or proceeds of
any insurance
policy with respect thereto), to the extent that such ownership
interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall
deliver to the
Seller all portions of the Mortgage File and other documents
pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller
any escrow
payments or reserve funds held by it, or on its behalf, in respect
of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as
contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to
reflect the
removal of such Mortgage Loan and shall forward such amended
schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any
modification
of the Mortgage Loan pursuant to a workout, foreclosure, sale or
other
liquidation pursuant to, and in accordance with, the Pooling and
Servicing
Agreement shall not constitute a defense to any repurchase claim
disputed by the
Seller nor shall such modification change the Purchase Price due
from the Seller
for any repurchase claim. In the event of any such modification,
the Seller
hereby agrees to repurchase the Mortgage Loan as modified, if the
Seller is
required to or elects to repurchase such Mortgage Loan in
accordance with the
terms of this Section 5. Any sale of the related Mortgage Loan, or
foreclosure
upon such Mortgage Loan and sale of the successor REO Property,
shall be without
(i) recourse of any kind (either expressed or implied) by such
Person against
the Seller and (ii) representation or warranty of any kind (either
expressed or
implied) by the Seller to or for the benefit of such Person.
(d) 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 successor REO Property or Mortgage Loan) shall not prejudice
any claim
against the Seller for repurchase of the REO Mortgage Loan or
successor REO
Property, which claim shall be made in accordance with this Section
5. If a
court of competent jurisdiction issues a final order that the
Seller is or was
obligated to repurchase the related Mortgage Loan or the successor
REO 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 9.01 of the Pooling and Servicing
Agreement, the
Seller will be obligated to pay to the Trust the difference between
(i) any
Liquidation Proceeds received upon such liquidation net of
Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in
such action
shall be entitled to recover from the other party all costs, fees
and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the
Seller
set forth in Section 5(a) to cure any Material Breach or Material
Document
Defect or to repurchase such Mortgage Loan constitute the sole
remedies
available to the Purchaser with respect to any Breach or Document
Defect.
(g) Notwithstanding the foregoing, if there exists a Breach of
that
portion of the representation or warranty on the part of the Seller
set forth
in, or made pursuant to, paragraph 38 of Exhibit B to this
Agreement,
specifically relating to whether or not the Mortgage Loan documents
or any
particular Mortgage Loan document for any Mortgage Loan requires
the related
Mortgagor to bear reasonable costs and expenses associated with a
defeasance, as
set forth in paragraph 38 (any such fees, costs or expenses,
referred to herein
as "Covered Costs"), then the Purchaser or its designee will direct
the Seller
in writing to wire transfer to the Custodial Account, within 90
days of receipt
of such direction, the amount of any such reasonable costs and
expenses incurred
by the Trust that (i) otherwise would have been required to be paid
by the
Mortgagor if such representation or warranty with respect to such
costs and
expenses had in fact been true, as set forth in the related
representation or
warranty, (ii) have not been paid by the Mortgagor, (iii) are the
basis of such
Breach and (iv) constitute "Covered Costs." Upon payment of such
costs, the
Seller shall be deemed to have cured such Breach in all respects.
Provided that
such payment is made, this paragraph describes the sole remedy
available to the
Purchaser regarding any such Breach, regardless of whether it
constitutes a
Material Breach, and the Seller shall not be obligated to otherwise
cure such
Breach or repurchase the affected Mortgage Loan under any
circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the
Purchaser (or
with respect to any Serviced Companion Loan that is deposited into
another
securitization, the depositor of such securitization) and the
Trustee with any
Additional Form 10-D Disclosure and any Additional Form 10-K
Disclosure set
forth next the Purchaser's name on Exhibit P and Exhibit Q of the
Pooling and
Servicing Agreement within the time periods set forth in the
Pooling and
Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage
Loans
(the "Closing") shall be held at the offices of Cadwalader,
Wickersham & Taft
LLP, One World Financial Center, New York, NY 10281 at 10:00 A.M.,
New York City
time, 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) Insofar as it affects the obligations of the Seller
hereunder,
the Pooling and Servicing Agreement shall be in a form mutually
acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to
the
Purchaser, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee
(or
a Custodian on its behalf), the Master Servicer and the Special
Servicer all
documents and funds required to be delivered to the Trustee, the
Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of
this Agreement;
(e) 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;
(f) The Seller shall have paid all fees and expenses payable by
it
to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its
terms.
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 Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist
of
the following:
(a) This Agreement duly executed by the Purchaser and the
Seller;
(b) The Pooling and Servicing Agreement duly executed by the
parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) 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 Purchasers may rely, to the effect
that 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;
(e) An Officer's Certificate from an officer of the Seller,
dated
the Closing Date, and upon which the Purchaser, the Underwriters
and the Initial
Purchasers may rely, to the effect that each individual who, as an
officer or
representative of the Seller, signed this Agreement, the
Indemnification
Agreement or any other document or certificate delivered on or
before the
Closing Date in connection with the transactions contemplated
herein or in the
Indemnification Agreement, 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 or certificates are their genuine
signatures, or
such other statement relating to incumbency that is acceptable to
the Purchaser,
the Underwriters and the Initial Purchasers;
(f) As certified by an officer of the Seller, true and correct
copies of (i) the resolutions of the board of directors authorizing
the Seller's
entering into the transactions contemplated by this Agreement and
the
Indemnification Agreement, (ii) the organizational documents of the
Seller, and
(iii) a certificate of good standing of the Seller issued by the
Secretary of
State of the State of Delaware as of a recent date;
(g) A favorable opinion of counsel to the Seller, subject to
customary exceptions and carveouts, dated the Closing Date and
addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating
Agencies and,
upon request, the other parties to the Pooling and Servicing
Agreement, together
with such other opinions of such counsel as may be required by the
Rating
Agencies in connection with the transactions contemplated
hereby;
(h) A favorable opinion of in-house counsel to the Seller,
subject
to customary exceptions and carveouts, dated the Closing Date and
addressed to
the Purchaser, the Underwriters, the Initial Purchasers, the Rating
Agencies
and, upon request, the other parties to the Pooling and Servicing
Agreement;
(i) A letter of counsel of the Seller, subject to customary
exceptions and carveouts, dated the Closing Date and addressed to
the
Underwriters, to the effect that nothing has come to such counsel's
attention
that would lead such counsel to believe that the Prospectus
Supplement as of the
date thereof or as of the Closing Date contains, with respect to
the Seller or
the Mortgage Loans, any untrue statement of a material fact or
omits to state a
material fact necessary in order to make the statements therein
relating to the
Seller or the Mortgage Loans, in the light of the circumstances
under which they
were made, not misleading; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. The reasonable out-of-pocket costs and
expenses
incurred by the Seller, each other mortgage loan seller, the
Purchaser, the
Underwriters and the Initial Purchasers in connection with the
securitization of
the Mortgage Loans and the other transactions contemplated by this
Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement
shall be
payable as set forth in a separate writing among such parties on
the Closing
Date.
SECTION 9. Grant of a Security Interest. The parties hereto
agree
that it is their express intent that the conveyance of the Mortgage
Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be
construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not
as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a
debt or other
obligation of the Seller. However, if, notwithstanding the
aforementioned intent
of the parties, the Mortgage Loans are held to be property of the
Seller, then
it is the express intent of the parties that: (i) such conveyance
shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the
Purchaser to
secure a debt or other obligation of the Seller; (ii) this
Agreement shall be
deemed to be a security agreement within the meaning of Articles 8
and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided
for in Section
2 hereof 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
in and to the
Mortgage Loans, and all amounts payable to the holder of the
Mortgage Loans in
accordance with the terms thereof, and all proceeds of the
conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities
or other
property; (iv) the assignment to the Trustee of the interest of the
Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of
any security
interest created hereunder; (v) the possession by the Trustee or
any of its
agents, including, without limitation, the Custodian, of the
Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute
instruments,
money, negotiable documents or chattel paper shall be deemed to be
"possession
by the secured party" for purposes of perfecting the security
interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and
(vi)
notifications to persons (other than the Trustee) holding such
property, and
acknowledgments, receipts or confirmations from such persons
holding such
property, shall be deemed notifications to, or acknowledgments,
receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable)
of the secured party for the purpose of perfecting such security
interest under
applicable law. The Seller and the Purchaser shall, to the extent
consistent
with this Agreement, take such actions as may be necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be deemed to be a perfected security
interest of
first priority under applicable law and will be maintained as such
throughout
the term of this Agreement and the Pooling and Servicing
Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in
writing and
telecopied or delivered to the intended recipient at the "Address
for Notices"
specified beneath its name on the signature pages hereof or, as to
either party,
at such other address as shall be designated by such party in a
notice hereunder
to the other party. Except as otherwise provided in this Agreement,
all such
communications shall be deemed to have been duly given when
transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon
receipt, in each case given or addressed as aforesaid
