Exhibit 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of
November 1, 2007 (this “ Agreement ”), is entered into
between BARCLAYS CAPITAL REAL ESTATE INC. (the “
Seller ”) and
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the “
Purchaser ”).
The Seller intends to sell and the Purchaser intends
to purchase certain multifamily and commercial mortgage loans (the
“ Mortgage Loans
”) identified on the schedule (the
“ Mortgage Loan Schedule
”) annexed hereto as Exhibit A . The Purchaser intends to
deposit the Mortgage Loans, along with certain other mortgage loans
(the “ Other Mortgage
Loans ”), into a trust fund (the
“ Trust Fund ”), the beneficial ownership of which will be evidenced
by multiple classes (each, a “ Class ”) of mortgage
pass-through certificates (the “ Certificates ”). One or more
“real estate mortgage investment conduit”
(“ REMIC ”) elections will be made with respect to most of the
Trust Fund. The Trust Fund will be created and the Certificates
will be issued pursuant to a pooling and servicing agreement (the
“ Pooling and Servicing
Agreement ”), dated as of November
1, 2007, among the Purchaser, as depositor, Wachovia Bank, National
Association, as master servicer (in such capacity, the
“ Master Servicer
”), CWCapital Asset Management LLC, as special
servicer (the “ Special
Servicer ”) and Wells Fargo Bank,
N.A., as trustee (the “ Trustee ”). Capitalized terms
used but not defined herein (including the Schedules attached
hereto) have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and
the mutual agreements set forth herein, the parties agree as
follows:
SECTION
1.
Agreement to Purchase .
The Seller agrees to sell, and the Purchaser agrees
to purchase, the Mortgage Loans identified on the Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans delivered to the Purchaser pursuant to the
terms hereof. The Mortgage Loans are expected to have an aggregate
principal balance of $242,773,439 (the BCRE Mortgage Loan Balance ”)
(subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments
due on or before such date, whether or not such payments are
received.
The BCRE Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the
Cut-Off Date (after giving effect to any payments due on or before
such date whether or not such payments are received), is expected
to equal an aggregate principal balance (the “
Cut-Off Date Pool Balance ”) of $1,479,435,064 (subject to a variance of plus or
minus 5.0%). The purchase and sale of the Mortgage Loans shall take
place on November 13, 2007, or such other date as shall be mutually
acceptable to the parties to this Agreement (the “
Closing Date ”).
The consideration (the “ Aggregate
Purchase Price ”) for the Mortgage
Loans shall be equal to (i) 99.15% of the BCRE Mortgage Loan
Balance as of the Cut-Off Date, plus (ii) $485,772, which
amount represents the amount of interest accrued on the BCRE
Mortgage Loan Balance at the related Net Mortgage Rate for the
period from and including the Cut-Off Date up to but not including
the Closing Date.
The Aggregate Purchase Price shall be paid to the
Seller or its designee by wire transfer in immediately available
funds on the Closing Date.
SECTION
2. Conveyance of Mortgage Loans
(a) Effective as of
the Closing Date, subject only to receipt by the Seller of the
Aggregate Purchase Price and satisfaction of the other conditions
to closing that are for the benefit of the Seller, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (except as set forth in this
Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as
of such date, on a servicing released basis, together with all of
the Seller’s right, title and interest in and to the proceeds
of any related title, hazard, primary mortgage or other insurance
proceeds.
(b) The
Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off
Date, and all other recoveries of principal and interest collected
after the Cut-Off Date (other than in respect of principal and
interest on the Mortgage Loans due on or before the Cut-Off Date).
All scheduled payments of principal and interest due on or before
the Cut-Off Date but collected on or after the Cut-Off Date, and
recoveries of principal and interest collected on or before the
Cut-Off Date (only in respect of principal and interest on the
Mortgage Loans due on or before the Cut-Off Date and principal
prepayments thereon), shall belong to, and shall be promptly
remitted to, the Seller.
(c) No
later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver to the Trustee, the documents and instruments
specified below with respect to each Mortgage Loan (each a
“ Mortgage File
”). All Mortgage Files so delivered will be
held by the Trustee in escrow at all times prior to the Closing
Date. Each Mortgage File shall contain the following
documents:
(i) the original
executed Mortgage Note including any power of attorney related to
the execution thereof, together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached
thereto (without recourse, representation or warranty, express or
implied) to the order of “Wells Fargo Bank, N.A., as trustee
for the registered holders of Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
2007-C34” or in blank (or a lost note affidavit and indemnity
with a copy of such Mortgage Note attached thereto);
(ii) an original or
copy of the Mortgage, together with any and all intervening
assignments thereof, in each case (unless not yet returned by the
applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or copy of
any related Assignment of Leases (if such item is a document
separate from the Mortgage), together with any and all intervening
assignments thereof, in each case (unless not yet returned by the
applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original
executed assignment, in recordable form (except for any missing
recording information), of (a) the Mortgage, (b) any related
Assignment of
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Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to
preceding clause (a)) and (c) any other recorded document relating
to the Mortgage Loan otherwise included in the Mortgage File, in
favor of “Wells Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
2007-C34”, or in blank;
(v) an original
assignment of all unrecorded documents relating to the Mortgage
Loan (to the extent not already assigned pursuant to clause (iv)
above), in favor of “Wells Fargo Bank, N.A., as trustee for
the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
2007-C34”, or in blank;
(vi) originals or
copies of any modification, consolidation, assumption and
substitution agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been consolidated
or modified or the Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy
of the policy or certificate of lender’s title insurance or,
if such policy has not been issued or located, an original or copy
of an irrevocable, binding commitment (which may be a marked
version of the policy that has been executed by an authorized
representative of the title company or an agreement to provide the
same pursuant to binding escrow instructions executed by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing
evidence of filing) or other evidence of filing satisfactory to the
Purchaser of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior
to the Trustee (but only to the extent the Seller had possession of
such UCC Financing Statements prior to the Closing Date) and, if
there is an effective UCC Financing Statement and continuation
statement in favor of the Seller on record with the applicable
public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of “Wells
Fargo Bank, N.A., as trustee for the registered holders of Wachovia
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2007-C34, as assignee”, or in
blank;
(ix) an original or
copy of (a) any Ground Lease, Memorandum of Ground Lease and ground
lessor estoppel, (b) any loan guaranty or indemnity and (c) any
environmental insurance policy;
(x) any
intercreditor agreement relating to permitted debt (including,
without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any
loan agreement, escrow agreement or security agreement relating to
such Mortgage Loan;
(xii) a copy of any letter
of credit and related transfer documents relating to such Mortgage
Loan;
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(xiii) copies of any management
agreement with respect to the underlying mortgaged property related
to the Mortgage Loan (the “Mortgaged
Property”);
(xiv) copies of any cash
management agreements with respect to the related Mortgaged
Property;
(xv) copies of
franchise agreements and franchisor comfort letters, if any, for
hospitality properties and applicable transfer or assignment
documents; and
(xvi) with respect to any
Companion Loan, all of the above documents with respect to such
Companion Loan and the related Intercreditor Agreement;
provided that a copy of
each Mortgage Note relating to such Companion Loan, rather than the
original, shall be provided, and no assignments shall be
provided.
(d) The
Seller shall take all actions reasonably necessary (i) to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d)
of the Pooling and Servicing Agreement and (ii) to perform its
obligations described in Section 2.01(d) of the Pooling and
Servicing Agreement. Without limiting the generality of the
foregoing, if a draw upon a letter of credit is required before its
transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust Fund
pursuant to written instructions from the Master Servicer. The
Seller shall reimburse the Trustee for all reasonable costs and
expenses, if any, incurred by the Trustee for recording any
documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in
the third to last sentence in Section 2.01(d) of the Pooling and
Servicing Agreement.
(e) All
documents and records (except draft documents, privileged
communications and internal correspondence and credit, due
diligence and other underwriting analysis, documents, data or
internal worksheets, memoranda, communications and evaluations of
the Seller) relating to each Mortgage Loan and in the
Seller’s possession (the “ Additional Mortgage Loan Documents ”) that are not required to be delivered to the Trustee
shall promptly be delivered or caused to be delivered by the Seller
to the Master Servicer or at the direction of the Master Servicer
to the appropriate sub-servicer, together with any related escrow
amounts and reserve amounts.
(f) The Seller
shall take such actions as are reasonably necessary to assign or
otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage
Loan.
SECTION
3.
Representations, Warranties and Covenants of
Seller
(a) The
Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller
is a corporation organized and validly existing and in good
standing under the laws of the State of Delaware and possesses all
requisite authority, power, licenses, permits and franchises to
carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this
Agreement;
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(ii) This Agreement
has been duly and validly authorized, executed and delivered by the
Seller and, assuming due authorization, execution and delivery
hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws relating to or affecting the enforcement
of creditors’ rights in general, and by general equity
principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law), and by public policy
considerations underlying the securities laws, to the extent that
such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide
indemnification from liabilities under applicable securities
laws;
(iii) The execution and
delivery of this Agreement by the Seller and the Seller’s
performance and compliance with the terms of this Agreement will
not (A) violate the Seller’s certificate of
incorporation or bylaws, (B) violate any law or regulation or
any administrative decree or order to which it is subject or
(C) constitute a material default (or an event which, with
notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by
which the Seller is bound;
(iv) The Seller is not
in default with respect to any order or decree of any court or any
order, regulation or demand of any federal, state, municipal or
other governmental agency or body, which default might have
consequences that would, in the Seller’s reasonable and good
faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties
or have consequences that would materially and adversely affect its
performance hereunder;
(v) The Seller
is not a party to or bound by any agreement or instrument or
subject to any certificate of incorporation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller’s
reasonable and good faith judgment, materially and adversely affect
the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the
execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent
has been obtained);
(vi) No consent,
approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by
this Agreement except as have previously been obtained, and no bulk
sale law applies to such transactions;
(vii) No litigation is
pending or, to the Seller’s knowledge, threatened against the
Seller that would, in the Seller’s good faith and reasonable
judgment, prohibit its entering into this Agreement or materially
and adversely affect the performance by the Seller of its
obligations under this Agreement;
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(viii) The Seller has caused
each Servicing Participant which services a Mortgage Loan to
comply, as evidenced by written documentation between each
Servicing Participant and the Seller, with all reporting
requirements set forth in Sections 3.13, 3.14, 3.22 and 8.17 of the
Pooling and Servicing Agreement applicable to such Servicing
Participant for the Mortgage Loans set forth on
Exhibit C , for so long
as the Trust Fund is subject to the reporting requirements of the
Securities Exchange Act of 1934, as amended;
(ix) Under generally
accepted accounting principles (“ GAAP ”) and for federal income
tax purposes, the Seller will report the transfer of the Mortgage
Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount
equal to the Aggregate Purchase Price. The consideration received
by the Seller upon the sale of the Mortgage Loans to the Purchaser
will constitute at least reasonably equivalent value and fair
consideration for the Mortgage Loans. The Seller will be solvent at
all relevant times prior to, and will not be rendered insolvent by,
the sale of the Mortgage Loans to the Purchaser. The Seller is not
selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the
Seller;
(x) The Seller has
examined the Disclosure Material set forth in the Preliminary
Prospectus Supplement (as defined below), the Prospectus Supplement
to the accompanying Prospectus (as defined below), the Preliminary
Memorandum, and the Memorandum, relating to the Certificates. The
Seller hereby represents and warrants that the Disclosure Material
is appropriately responsive in all material respects to the
applicable requirements of Items 1104, 1110, 1111, 1117 and 1119 of
Regulation AB with respect to the Seller and the BCRE Mortgage
Loans; and
(xi) 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 Companion Loan that is deposited into another
securitization, the depositor in such other securitization) and the
Trustee with any Additional Form 10-K Disclosure and any Additional
Form 10-D Disclosure set forth next to the Purchaser’s name
on Exhibit U and Exhibit W , respectively, of the Pooling and Servicing Agreement within
the time periods set forth in the Pooling and Servicing
Agreement.
(b) The
Seller hereby makes the representations and warranties contained
in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with
respect to (and solely with respect to) each Mortgage Loan, which
representations and warranties are subject to the exceptions set
forth on Schedule II
.
(c) With
respect to the schedule of exceptions delivered by the Trustee on
the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative,
thirty (30) Business Days) of the Closing Date, with respect to the
documents specified in clauses (i), (ii), (vii), (ix) (solely
with respect to Ground Leases) and (xii) of the definition of
Mortgage File, the Seller shall cure any material exception listed
therein (for the avoidance of doubt, any deficiencies with respect
to the documents specified in clause
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(ii) resulting solely from a delay in the
return of the related documents from the applicable recording
office, shall be cured in the time and manner described in
Section 2.01(c) of the Pooling and Servicing Agreement).
If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to
exceptions relating to clause (xii) of the definition of
“Mortgage File”, deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the
Pooling and Servicing Agreement, equal to the amount of the
undelivered letter of credit (in the alternative, the Seller may
deliver to the Trustee, with a certified copy to the Master
Servicer and Trustee, a letter of credit for the benefit of the
Master Servicer on behalf of the Trustee and upon the same terms
and conditions as the undelivered letter of credit) which the
Master Servicer on behalf of the Trustee may use (or draw upon, as
the case may be) under the same circumstances and conditions as the
Master Servicer would have been entitled to draw on the undelivered
letter of credit, or (3) with respect to any exceptions relating to
clauses (i), (ii) and (vii), deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant
to the Pooling and Servicing Agreement, equal to 25% of the Stated
Principal Balance of the related Mortgage Loan on such date. Any
funds or letter of credit deposited pursuant to clauses (2) and (3)
above shall be held by the Trustee until the earlier of
(x) the date on which the Master Servicer certifies to the
Trustee and the Controlling Class Representative that such
exception has been cured (or the Trustee certifies the same to the
Controlling Class Representative), at which time such funds or
letter of credit, as applicable, shall be returned to the Seller
and (y) thirty (30) Business Days or, if the Controlling Class
Representative has extended the cure period, forty-five (45)
Business Days after the Closing Date; provided , however , that if such exception is
not cured within such thirty (30) Business Days or forty-five (45)
Business Days, as the case may be, (A) in the case of clause
(2), the Trustee shall retain the funds on deposit in the related
Special Reserve Account, or letter of credit, as applicable, or
(B) in the case of clause (3), the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions
of this Agreement, at which time such funds shall be applied to the
Purchase Price of the related Mortgage Loan and any letter of
credit will be returned to the Seller.
If the Seller receives written notice of a Document
Defect or a Breach pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement relating to a Mortgage Loan, then
the Seller shall not later than ninety (90) days from receipt of
such notice (or, in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a “qualified
mortgage” within the meaning of the REMIC Provisions (a
“ Qualified Mortgage
”), not later than ninety (90) days from the
date that any party to the Pooling and Servicing Agreement
discovers such Document Defect or Breach; provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall
materially and adversely affect the value of the applicable
Mortgage Loan, the interest of the Trust Fund therein or the
interests of any Certificateholder, cure such Document Defect or
Breach, as the case may be, in all material respects, which shall
include payment of actual or provable losses and any Additional
Trust Fund Expenses directly resulting from any such Document
Defect or Breach or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the
related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan at the
applicable Purchase Price not later than the end of such 90-day
period or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such
90-day period (and in no event later than the second anniversary of
the Closing Date) and pay the Master Servicer for deposit into the
Certificate Account, any Substitution Shortfall
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Amount in connection therewith;
provided ,
however , that unless
the Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, and if such Document Defect or Breach is capable of being
cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, such Seller
shall have an additional ninety (90) days to complete such cure
(or, failing such cure, to repurchase or substitute the related
Mortgage Loan); provided
, further
, that with respect to such additional 90-day period
the Seller shall have delivered an officer’s certificate to
the Trustee setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured
within the additional 90-day period; provided , further , that no Document Defect
(other than with respect to a Mortgage Note, Mortgage, title
insurance policy, Ground Lease, any letter of credit, any franchise
agreement, any comfort letter and (if required) any comfort letter
transfer documents (collectively, the “ Core Material Documents ”))
shall be considered to materially and adversely affect the value of
the related Mortgage Loan, the interests of the Trust Fund therein
or the interests of any Certificateholder unless the document with
respect to which the Document Defect exists is required in
connection with an imminent enforcement of the mortgagee’s
rights or remedies under the related Mortgage Loan, defending any
claim asserted by any borrower or third party with respect to the
Mortgage Loan, establishing the validity or priority of any lien or
any collateral securing the Mortgage Loan or for any immediate
significant servicing obligations; provided , further , with respect to Document
Defects which materially and adversely affect the interests of any
Certificateholder, the interests of the Trust Fund therein or the
value of the related Mortgage Loan, other than with respect to
Document Defects relating to the Core Material Documents, any
applicable cure period following the initial 90-day cure period may
be extended by the Master Servicer or the Special Servicer if the
document involved is not needed imminently. Such extension will end
upon thirty (30) days notice of such need as reasonably determined
by the Master Servicer or Special Servicer (with a possible thirty
(30) day extension if the Master Servicer or Special Servicer
agrees that the Seller is diligently pursuing a cure). The Seller
shall cure all Document Defects which materially and adversely
affect the interests of any Certificateholder, the interests of the
Trust Fund therein or the value of the related Mortgage Loan,
regardless of the document involved, no later than two years
following the Closing Date; provided that the initial 90-day cure
period referenced in this paragraph may not be reduced. For a
period of two years from the Closing Date, so long as there remains
any Mortgage File relating to a Mortgage Loan as to which there is
any uncured Document Defect or Breach, the Seller shall provide the
officer’s certificate to the Trustee described above as to
the reasons such Document Defect or Breach remains uncured and as
to the actions being taken to pursue cure. Notwithstanding the
foregoing, the delivery of a commitment to issue a policy of
lender’s title insurance as described in Representation 12 of
Schedule I hereof in lieu of the delivery of the actual policy of
lender’s title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual
policy of insurance is delivered to the Trustee or a Custodian on
its behalf not later than the 90 th day following the
Closing Date.
If (i) any Mortgage Loan is required to be
repurchased or substituted for in the manner described above,
(ii) such Mortgage Loan is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans (each, a
“ Crossed Loan
”), and (iii) the applicable Document
Defect or Breach does not constitute a Document Defect or Breach,
as the case may be, as to any other Crossed Loan in such Crossed
Group (without regard to this paragraph), then the applicable
Document Defect or Breach, as the case may be, will be deemed to
constitute a
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Document Defect or Breach, as the case may be, as to
any other Crossed Loan in the Crossed Group for purposes of this
paragraph, and the Seller will be required to repurchase or
substitute for all of the remaining Crossed Loan(s) in the related
Crossed Group as provided in the immediately preceding paragraph
unless such other Crossed Loans in such Crossed Group satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In
the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase
or substitute for only the affected Crossed Loan as to which the
related Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed
Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the Master Servicer to
determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably
withheld).
To the extent that the Seller is required to
repurchase or substitute for a Crossed Loan hereunder in the manner
prescribed above while the Trustee continues to hold any other
Crossed Loans in such Crossed Group, neither the Seller nor the
Purchaser shall enforce any remedies against the other’s
Primary Collateral, but each is permitted to exercise remedies
against the Primary Collateral securing its respective Crossed
Loans, including with respect to the Trustee, the Primary
Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would
materially impair the ability of the other party to exercise its
remedies with respect to the Primary Collateral securing the
Crossed Loans held by such party, then the Seller and the Purchaser
shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove
the threat of material impairment as a result of the exercise of
remedies or some other accommodation can be reached. Any reserve or
other cash collateral or letters of credit securing the Crossed
Loans shall be allocated between such Crossed Loans in accordance
with the Mortgage Loan documents, or otherwise on a
pro rata basis based
upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan included in the Trust Fund is
modified to terminate the related cross-collateralization and/or
cross-default provisions, as a condition to such modification, the
Seller shall furnish to the Trustee an Opinion of Counsel that any
modification shall not cause an Adverse REMIC Event. Any expenses
incurred in good faith by the Purchaser in connection with such
modification or accommodation (including, but not limited to,
recoverable attorney fees) shall be paid by the Seller.
(d) In
connection with any permitted repurchase or substitution of one or
more Mortgage Loans contemplated hereby, upon receipt of a
certificate from a Servicing Officer certifying as to the receipt
of the Purchase Price or Substitution Shortfall Amount(s), as
applicable, in the Certificate Account, and the delivery of the
Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer, respectively, if applicable (i) the Trustee
shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer, in each case without
recourse, representation or warranty, as shall be necessary to vest
in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or substituted Mortgage Loan, as
applicable, (ii) the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall each tender to
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the Seller, upon delivery to each of them of a
receipt executed by the Seller, all portions of the Mortgage File
and other documents pertaining to such Mortgage Loan possessed by
it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds
held by it in respect of such repurchased or substituted Mortgage
Loans.
(e) Without
limiting the remedies of the Purchaser, the Certificateholders or
the Trustee on behalf of the Certificateholders pursuant to this
Agreement, it is acknowledged that the representations and
warranties are being made for risk allocation purposes. This
Section 3 provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage
File or any Breach of any representation or warranty set forth in
or required to be made pursuant to this Section 3. Nothing in
this Agreement shall prohibit the Purchaser or its assigns
(including the Master Servicer and/or the Special Servicer) from
pursuing any course of action authorized by the Pooling and
Servicing Agreement while the Purchaser asserts a claim or brings a
cause of action to enforce any rights set forth herein against the
Seller.
(f) With respect
to any Mortgage Loan which has become a Defaulted Mortgage Loan
under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the
subject of a repurchase claim under this Agreement, in accordance
with Section 2.03 of the Pooling and Servicing Agreement, the
Special Servicer with the consent of the Controlling Class
Representative shall notify the Seller in writing of its intention
to liquidate such Defaulted Mortgage Loan or REO Property at least
45 days prior to any such action. If (a) the Seller consents
to such sale and voluntarily agrees to repurchase such Defaulted
Mortgage Loan or REO Property or (b) a court of competent
jurisdiction determines that the Seller is liable under this
Agreement to repurchase such Defaulted Mortgage Loan or REO
Property, then such Seller shall remit to the Purchaser an amount
equal to the difference if any of the price of such Defaulted
Mortgage Loan or REO Property as sold and the price at which the
Seller would have had to repurchase such Defaulted Mortgage Loan or
REO Property under this Agreement. The Seller shall have ten (10)
Business Days after receipt of notice to determine whether or not
to consent to such sale. If the Seller does not consent to such
sale, the Special Servicer shall contract with a Determination
Party (as defined in the Pooling and Servicing Agreement) as to the
merits of such proposed sale. If the related Determination Party
determines that such proposed sale is in accordance with the
Servicing Standard and the provisions of the Pooling and Servicing
Agreement with respect to the sale of Defaulted Mortgage Loans and
REO Properties and, subsequent to such sale, a court of competent
jurisdiction determines that the Seller was liable under this
Agreement and required to repurchase such Defaulted Mortgage Loan
or REO Property in accordance with the terms hereof, then the
Seller shall remit to the Purchaser an amount equal to the
difference (if any) between the proceeds of the related action and
the price at which the Seller would have been obligated to pay had
the Seller repurchased such Defaulted Mortgage Loan or REO Property
prior to the execution of a binding contract of sale with a third
party in accordance with the terms hereof including the costs
related to contracting with the related Determination Party;
provided that the
foregoing procedure in this Section 3(f) shall not
preclude such Seller from repurchasing the Defaulted Mortgage Loan
or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the other provisions of
this Section 3 (excluding this Section 3(f)). If the
related Determination Party determines that the sale of the related
Defaulted Mortgage Loan or REO Property is not in accordance with
the Servicing Standard and the
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provisions of the Pooling and Servicing Agreement
with respect to the sale of Defaulted Mortgage Loans and REO
Properties and the Special Servicer subsequently sells such
Mortgage Loan or REO Property, then the Seller will not be liable
for any such difference (nor any cost of contracting with the
Determination Party).
(g) Notwithstanding
the foregoing, if there exists a Breach relating to whether or not
the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and
expenses associated with any particular action or matter under such
Mortgage Loan document(s) with respect to matters described in
Representations 23 and 43 of Schedule I hereof, then the Purchaser
shall direct the Seller in writing to wire transfer to the Master
Servicer for deposit into the Certificate Account, within ninety
(90) days of the Seller’s receipt of such direction, the
amount of any such costs and expenses borne by the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and
the Trustee on their behalf that are the basis of such Breach. Upon
its making such deposit, the Seller shall be deemed to have cured
such Breach in all respects. Provided such payment is made in full,
this paragraph describes the sole remedy available to the
Purchaser, the Certificateholders, the Master Servicer, the Special
Servicer and the Trustee on their behalf regarding any such Breach
and the Seller shall not be obligated to repurchase the affected
Mortgage Loan on account of such Breach or otherwise cure such
Breach.
SECTION
4.
Representations and Warranties of the
Purchaser . In order to induce the Seller
to enter into this Agreement, the Purchaser hereby represents and
warrants for the benefit of the Seller as of the date hereof
that:
(a) The
Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal
right to acquire the Mortgage Loans from the Seller and to transfer
the Mortgage Loans to the Trustee.
(b) This
Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the
Purchaser’s directors and officers has been taken in
connection therewith, and (assuming the due authorization,
execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its
terms, except as such enforcement may be limited by (A) laws
relating to bankruptcy, insolvency, reorganization, receivership or
moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) Except
as may be required under federal or state securities laws (and
which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice
to, any governmental authority or court, is required, under federal
or state law, for the execution, delivery and performance by the
Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
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(d) 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 require or
will require the consent of any third person or constitutes or will
constitute a default under (A) any term or provision of the
Purchaser’s certificate of incorporation or bylaws,
(B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Purchaser is a party or by
which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the
Purchaser or its assets.
(e) Under
GAAP and for federal income tax purposes, the Purchaser will report
the transfer of the Mortgage Loans by the Seller to the Purchaser
as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the Aggregate
Purchase Price.
(f) There is no
action, suit, proceeding or investigation pending or to the
knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
validity of this Agreement or any action taken in connection with
the obligations of the Purchaser contemplated herein, or which
would be likely to impair materially the ability of the Purchaser
to enter into and/or perform its obligations under the terms of
this Agreement.
(g) The
Purchaser is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state,
municipal or governmental agency or body, which default might have
consequences that would materially and adversely affect the
condition (financial or other) or operations of the Purchaser or
its properties or might have consequences that would materially and
adversely affect its performance hereunder.
SECTION
5.
Closing . The closing
of the sale of the Mortgage Loans (the “
Closing ”) shall
be held at the offices of Dewey & LeBoeuf LLP, Charlotte, North
Carolina on the Closing Date.
The Closing shall be subject to each of the
following conditions:
(a) All of
the representations and warranties of the Seller set forth in or
made pursuant to Sections 3(a) and 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in
Section 4 of this Agreement shall be true and correct in all
material respects as of the Closing Date;
(b) The
Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder) and all documents specified in
Section 6 of this Agreement (the “ Closing Documents ”), in such
forms as are agreed upon and acceptable to the Purchaser, the
Seller, the Underwriters, the Initial Purchaser and their
respective counsel in their reasonable discretion,
shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
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(c) The
Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to
the Trustee and the Master Servicer pursuant to Section 2 of
this Agreement;;
(d) All
other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with in all material respects and the Seller shall have
the ability to comply with all terms and conditions and perform all
duties and obligations required to be complied with or performed
after the Closing Date;
(e) The
Seller shall have paid all fees and expenses payable by it to the
Purchaser or otherwise pursuant to this Agreement as of the Closing
Date; and
(f) The letters
shall have been received from the independent accounting firms KPMG
LLP and Ernst & Young LLP, in form satisfactory to the
Purchaser, relating to certain information regarding the Mortgage
Loans and Certificates as set forth in the Prospectus, the
Preliminary Prospectus Supplement, the Prospectus Supplement, the
Preliminary Memorandum and the Memorandum.
Both parties agree to use their best efforts to
perform their respective obligations hereunder in a manner that
will enable the Purchaser to purchase the Mortgage Loans on the
Closing Date.
SECTION
6.
Closing Documents . The
Closing Documents shall consist of the following:
(a)
This Agreement duly executed by the Purchaser and
the Seller;
(b) A
certificate of the Seller, executed by a duly authorized officer of
the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchaser may rely, to
the effect that: (i) the representations and warranties of the
Seller in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if
made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the
conditions on its part that are required under this Agreement to be
performed or satisfied at or prior to the Closing Date;
(c) An
officer’s certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and
upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate
delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of
such signing and delivery, and is as of the Closing Date, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on
such documents and certificates are their genuine
signatures;
(d) An
officer’s certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and
upon which the Purchaser, the Underwriters and the Initial
Purchaser may rely, to the effect that with respect to the Seller,
the Mortgage
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Loans, the related Mortgagors and the related
Mortgaged Properties (i) such officer has carefully examined
the Specified Portions of the Preliminary Prospectus Supplement
together with all other Time of Sale Information delivered prior to
the Time of Sale and nothing has come to his attention that would
lead him to believe that the Specified Portions of the Preliminary
Prospectus Supplement together with all other Time of Sale
Information delivered prior to the Time of Sale, as of the Time of
Sale, or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or
omitted or omit to state therein a material fact necessary in order
to make the statements therein relating to the Mortgage Loans, in
light of the circumstances under which they were made, not
misleading, (ii) such officer has carefully examined the
Specified Portions of the Prospectus Supplement and nothing has
come to his attention that would lead him to believe that the
Specified Portions of the Prospectus Supplement, as of the date of
the Prospectus Supplement, or as of the Closing Date, included or
include any untrue statement of a material fact relating to the
Mortgage Loans or omitted or omit to state therein a material fact
necessary in order to make the statements therein relating to the
Mortgage Loans, in light of the circumstances under which they were
made, not misleading, (iii) such officer has examined the
Specified Portions of the Memorandum and nothing has come to his
attention that would lead him to believe that the Specified
Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a
material fact relating to the Mortgage Loans or omitted or omit to
state therein a material fact necessary in order to make the
statements therein related to the Mortgage Loans, in the light of
the circumstances under which they were made, not misleading. The
“Specified Portions” of the Preliminary Prospectus
Supplement or the Prospectus Supplement, as applicable, shall
consist of Annex A and Annex D thereto, the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is
consistent with such Annex A) and the following sections of the
Preliminary Prospectus Supplement or the Prospectus Supplement, as
applicable (exclusive of any statements in such sections that
purport to summarize the servicing and administration provisions of
the Pooling and Servicing Agreement): “SUMMARY OF PROSPECTUS
SUPPLEMENT—THE PARTIES—The Mortgage Loan
Sellers”, “SUMMARY OF PROSPECTUS SUPPLEMENT—THE
MORTGAGE LOANS”, “RISK FACTORS—The Mortgage
Loans”, “DESCRIPTION OF THE MORTGAGE
POOL—General”, “—Mortgage Loan
History”, “—Certain Terms and Conditions of the
Mortgage Loans”, “—Assessments of Property
Condition”, “—Co-Lender Loans”,
“—Additional Mortgage Loan Information”,
“—Twenty Largest Mortgage Loans”,
“—The Mortgage Loan Sellers”, “—The
Sponsors” and “—Representations and Warranties;
Repurchases and Substitutions”. The “Specified
Portions” of the Memorandum shall consist of the Specified
Portions of the Prospectus Supplement and the first and second full
paragraphs on page “v” of the Memorandum.
(e) The
resolutions of the requisite committee of the Seller’s
special loan committee authorizing the Seller’s entering into
the transactions contemplated by this Agreement, the certificate of
incorporation and by-laws of the Seller, and an original or copy of
a certificate of good standing of the Seller issued by the State of
Delaware not earlier than sixty (60) days prior to the Closing
Date;\
(f) A
written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof),
reasonably satisfactory to the Purchaser, its counsel and the
Rating Agencies, dated the Closing Date and addressed to
the
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Purchaser, the Trustee, the Underwriters, the
Initial Purchaser and each of the Rating Agencies, together with
such other written opinions as may be required by the Rating
Agencies; and
(g) Such
further certificates, opinions and documents as the Purchaser may
reasonably request.
SECTION
7.
Indemnification .
(a) The
Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchaser, their respective officers and
directors, and each person, if any, who controls the Purchaser, any
Underwriter or any Initial Purchaser within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the
“ 1933 Act ”) or Section 20 of the Securities Exchange Act of
1934, as amended (the “ 1934
Act ”), against any and all losses,
expenses (including the reasonable fees and expenses of legal
counsel), claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act,
the 1934 Act or other federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) (i) arise out
of or are based upon a breach of the representations made by the
Seller in Section 3(a)(ix) hereof, (ii) arise out of or
are based upon a breach or violation of the representations made by
the Seller in Section 3(a)(x) hereof, (iii) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (A) the Prospectus
Supplement, the Preliminary Memorandum, the Memorandum, the
Diskette or, to the extent reviewed and approved by Seller, in any
revision or amendment of or supplement to any of the foregoing,
(B) any Time of Sale Information or any Issuer Information
contained in any Free Writing Prospectus prepared by or on behalf
of the Underwriters (an “ Underwriter Free Writing Prospectus ”) or contained in any Free Writing Prospectus which is
required to be filed in accordance with the terms of the
Underwriting Agreement, (C) any items similar to Free Writing
Prospectuses forwarded by the Seller to the Initial Purchaser, or
in any revision or amendment of or supplement to any of the
foregoing or (D) the summaries, reports, documents and other
written and computer materials and all other information regarding
the Mortgage Loans or the Seller furnished by the Seller for review
by prospective investors (the items in (A), (B), (C) and
(D) above being defined as the “ Disclosure Material ”), or
(iv) arise out of or are based upon the omission or alleged
omission to state therein (in the case of Free Writing
Prospectuses, when read in conjunction with the other Time of
Sale
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Information in the case of any items similar to Free
Writing Prospectuses, when read in conjunction with the Memorandum)
and in the case of any summaries, reports, documents, written or
computer materials, or other information contemplated in clause
(D) above, when read in conjunction with the Memorandum and,
in the case of any Free Writing Prospectus, when read in
conjunction with the other Time of Sale Information, a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; but, with respect to any Disclosure
Material described in clauses (A), (B) and (C) of the
definition thereof, only if and to the extent that (I) any such
untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon an untrue statement or
omission with respect to the Mortgage Loans, the related Mortgagors
and/or the related Mortgaged Properties contained in the Data File
(it being herein acknowledged that the Data File was and will be
used to prepare the Preliminary Prospectus Supplement and the
Prospectus Supplement, including without limitation Annex A
thereto, any other Time of Sale Information, the Preliminary
Memorandum, the Memorandum and the Diskette with respect to the
Registered Certificates and any items similar to Free Writing
Prospectuses forwarded to prospective investors in the
Non-Registered Certificates and any Free Writing Prospectus), (II)
any such untrue statement or alleged untrue statement or omission
or alleged omission of a material fact occurring in, or with
respect to, such Disclosure Material, is with respect to, or arises
out of or is based upon an untrue statement or omission of a
material fact with respect to, the information regarding the
Mortgage Loans, the related Mortgagors, the related Mortgaged
Properties and/or the Seller set forth in the Specified Portions of
the Preliminary Prospectus Supplement, the Prospectus Supplement,
the Preliminary Memorandum or the Memorandum, (III) any such untrue
statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made
pursuant to Section 3 hereof or (IV) any such untrue statement
or alleged untrue statement or omission or alleged omission
occurring in, or with respect to, such Disclosure Material, arises
out of or is based upon any other written information concerning
the characteristics of the Mortgage Loans, the related Mortgagors
or the related Mortgaged Properties furnished to the Purchaser, the
Underwriters or the Initial Purchaser by the Seller;
provided , that the
indemnification provided by this Section 7 shall not apply to
the extent that such untrue statement or omission of a material
fact was made as a result of an error in the manipulation of, or in
any calculations based upon, or in any aggregation of the
information regarding the Mortgage Loans, the related Mortgagors
and/or the related Mortgaged Properties set forth in the Data File
or Annex A to the Preliminary Prospectus Supplement or the
Prospectus Supplement to the extent such information was not
materially incorrect in the Data File or such Annex A, as
applicable, including without limitation the aggregation of such
information with comparable information relating to the Other
Mortgage Loans. Notwithstanding the foregoing, the indemnification
provided in this Section 7(a) shall not inure to the benefit
of any Underwriter or Initial Purchaser (or to the benefit of any
person controlling such Underwriter or Initial Purchaser) from whom
the person asserting claims giving rise to any such losses, claims,
damages, expenses or liabilities purchased Certificates if
(x) the subject untrue statement or omission or alleged untrue
statement or omission made in any Disclosure Material (exclusive of
the Prospectus or any corrected or amended Prospectus or the
Memorandum or any corrected or amended Memorandum) is eliminated or
remedied in the Prospectus or the Memorandum or, with respect to
any Time of Sale Information only, by the delivery of a Corrected
Free Writing Prospectus prior to the Time of Sale (in each case, as
corrected or amended, if applicable), as applicable, and (y) a copy
of the Prospectus, Memorandum or Corrected Free Writing Prospectus
(in each case, as corrected or amended, if applicable), as
applicable, shall not have been sent to such person at or prior to
the Time of Sale of such Certificates, and (z) in the case of a
corrected or amended Prospectus, Memorandum or Corrected Free
Writing Prospectus, such Underwriter or Initial Purchaser received
electronically or in writing notice of such untrue statement or
omission and updated information concerning the untrue statement or
omission at least one Business Day prior to the Time of Sale. The
Seller shall, subject to clause (c) below, reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or
action.
(b) For
purposes of this Agreement, “ Registration Statement ” shall
mean such registration statement No. 333-131262 filed by the
Purchaser on Form S-3, including without limitation exhibits
thereto and information incorporated therein by reference;
“ Base Prospectus
”
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shall mean the prospectus, dated October 19, 2006,
as supplemented by the prospectus supplement, dated November 1,
2007 (the “ Prospectus
Supplement ” and, together with the
Base Prospectus, the “ Prospectus ”) relating to the
Registered Certificates, including all annexes thereto;
“ Preliminary Prospectus
Supplement ” shall mean the free
writing prospectus, dated October 12, 2007, consisting of the
preliminary free writing prospectus, including the Base Prospectus,
dated October 19, 2006 attached thereto; “
Preliminary Memorandum ” shall mean the preliminary private placement
memorandum, dated October 29, 2007, relating to the Non-Registered
Certificates, including all annexes thereto; “
Memorandum ”
shall mean the private placement memorandum, dated November 1,
2007, relating to the Non-Registered Certificates, including all
exhibits thereto; “ Registered
Certificates ” shall mean the Class
A-1, Class A-2, Class A-PB, Class A-3, Class A-1A, Class IO,
Class A-J, Class B, Class C, Class D, Class E and Class F
Certificates; “ Non-Registered
Certificates ” shall mean the
Certificates other than the Registered Certificates; “
Diskette ” shall
mean the diskette or compact disc attached to each of the
Preliminary Prospectus Supplement, the Prospectus and the
Memorandum; and “ Data
File ” shall mean the compilation
of information and data regarding the Mortgage Loans covered by the
Agreed Upon Procedures Letters, dated October 12, 2007, and
rendered by Ernst & Young LLP (a “hard copy” of
which Data File was initialed on behalf of the Seller and the
Purchaser). “ Free Writing
Prospectus ” shall mean a
“free writing prospectus” as such term is defined
pursuant to Rule 405 under the 1933 Act. “
Corrected Free Writing Prospectus
” shall mean a Free Writing Prospectus that
corrects any previous Free Writing Prospectus prepared by or on
behalf of any Underwriter and delivered to any purchaser that
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
contained therein, in light of the circumstances in which they were
made, not misleading. “ Time of
Sale ” shall mean the time at which
sales to investors of the Certificates were first made as
determined in accordance with Rule 159 of the 1933 Act.
“ Time of Sale
Information ” shall mean each free
writing prospectus listed on Exhibit
B hereto. “ Issuer Information ” shall have
the meaning given to such term in Rule 433(h) under the 1933 Act
(as discussed by the Securities and Exchange Commission (the
“ Commission ”) in footnote 271 of the Commission’s Securities
Offering Reform Release No. 33—8591). “
Regulation AB ”
shall have the meaning as defined in Subpart 229.1100 – Asset
Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123 of the 1933 Act, as such may be
amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the
adopting release (Asset-Backed Securities, Securities Act Release
No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
(c) As
promptly as reasonably practicable after receipt by any person
entitled to indemnification under this Section 7 (an “
indemnified party ”) of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the Seller (the “ indemnifying party ”) under
this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it
may have to any indemnified party under Section 7(a) (except to the
extent that such omission has prejudiced the indemnifying party in
any material respect) or from any liability which it may have
otherwise than under this Section 7. In case any such action is
brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified
party promptly after
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receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified
party; provided , however ,
that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified
party or parties shall have reasonably concluded that there may be
legal defenses available to it or them and/or other indemnified
parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right
to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with
the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchaser, representing
all the indemnified parties under Section 7(a) hereof who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
Unless it shall assume the defense of any proceeding, an
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party shall indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if
at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel or any other expenses for which the
indemnifying party is obligated under this subsection, the
indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than forty-five (45)
days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in
