Exhibit 99.6
NCB, FSB Mortgage Loan Purchase Agreement
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
(NCB, FSB LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
November 1, 2007, between NCB, FSB (the "Seller"), and Morgan
Stanley Capital I
Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to
purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage
Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a
trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the
"Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the
Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Wells
Fargo Bank,
National Association, as Wells Fargo Master Servicer, NCB, FSB, as
NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer,
National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank
National
Association, as Trustee and Custodian, and Wells Fargo Bank,
National
Association, as Paying Agent, Certificate Registrar and
Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans
(the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will
issue to the
Depositor pass-through certificates to be known as Morgan Stanley
Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the
Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have
the
meanings assigned to them in the Pooling and Servicing
Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4,
Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA
Certificates
(the "Public Certificates") will be sold by the Purchaser to Morgan
Stanley &
Co. Incorporated, Greenwich Capital Markets, Inc., Merrill Lynch,
Pierce, Fenner
& Smith (except with respect to the Class A-4 Certificates) and
RBC Capital
Markets Corporation (collectively, the "Underwriters"), pursuant to
an
Underwriting Agreement, between the Purchaser and the Underwriters,
dated
November 15, 2007 (the "Underwriting Agreement"), and the Class
X-1, Class X-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class EI, Class
R-I, Class R-II and Class R-III Certificates (collectively, the
"Private
Certificates") will be sold by the Purchaser to Morgan Stanley
& Co.
Incorporated (in such capacity, the "Initial Purchaser") pursuant
to a
Certificate Purchase Agreement, between the Purchaser and the
Initial Purchaser,
dated November 15, 2007 (the "Certificate Purchase Agreement"). The
Underwriters
will offer the Public Certificates for sale publicly pursuant to a
Prospectus
dated June 22, 2007, as supplemented by a Prospectus Supplement
dated November
15, 2007 (together, the "Prospectus Supplement"), and the Initial
Purchaser will
offer the Private Certificates (other than the Class EI, Class R-I,
Class R-II
and Class R-III Certificates) for sale in transactions exempt from
the
registration requirements of the Securities Act of 1933 pursuant to
a Private
Placement Memorandum, dated as of November 15, 2007 (the
"Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and
the
Purchaser agrees to purchase, on a servicing released basis, the
Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Exhibit 1, as such schedule may be amended to reflect the actual
Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off
Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in
the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will
have an
aggregate principal balance as of the close of business on the
Cut-Off Date,
after giving effect to any payments due on or before such date,
whether or not
received, of $78,111,239. The sale of the Mortgage Loans shall take
place on
November 29, 2007 or such other date as shall be mutually
acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid
by the
Purchaser for the Mortgage Loans shall equal the amount set forth
as such
purchase price on the Bill of Sale. The purchase price shall be
paid to the
Seller by wire transfer in immediately available funds on the
Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right,
title and
interest in and to the Mortgage Loans and its rights under this
Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed
to such
right, title and interest in and to the Mortgage Loans and the
Purchaser's
rights under this Agreement (to the extent set forth in Section
15).
Section 2. Conveyance of Mortgage Loans. Effective as of the
Closing
Date, subject only to receipt of the consideration referred to in
Section 1
hereof and the satisfaction of the conditions specified in Sections
6 and 7
hereof, the Seller does hereby transfer, assign, set over and
otherwise convey
to the Purchaser, without recourse, all the right, title and
interest of the
Seller, in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as
of the Closing Date. The Mortgage Loan Schedule, as it may be
amended from time
to time on or prior to the Closing Date, shall conform to the
requirements of
this Agreement and the Pooling and Servicing Agreement. In
connection with such
transfer and assignment, the Seller shall deliver to or on behalf
of the
Trustee, on behalf of the Purchaser, on or prior to the Closing
Date, the
Mortgage Note (as described in clause (a) below) for each Mortgage
Loan and on
or prior to the fifth Business Day after the Closing Date, five
limited powers
of attorney substantially in the form attached hereto as Exhibit 4
in favor of
the Trustee, the applicable Master Servicer and the applicable
Special Servicer
to empower the Trustee, the applicable Master Servicer and, in the
event of the
failure or incapacity of the Trustee and the applicable Master
Servicer, the
applicable Special Servicer, to submit for recording, at the
expense of the
Seller, any mortgage loan documents required to be recorded as
described in the
Pooling and Servicing Agreement and any intervening assignments
with evidence of
recording thereon that are required to be included in the Mortgage
Files (so
long as original counterparts have previously been delivered to the
Trustee).
The Seller agrees to reasonably cooperate with the Trustee, the
applicable
Master Servicer and the applicable Special Servicer in connection
with any
additional powers of attorney or revisions thereto that are
requested by such
parties for purposes of such recordation. The parties hereto agree
that no such
power of attorney shall be used with respect to any Mortgage Loan
by or under
authorization by any party hereto except to the extent that the
absence of a
document described in the second preceding sentence with respect to
such
Mortgage Loan remains unremedied as of the earlier of (i) the date
that is 180
days following the delivery of notice of such absence to the
Seller, but in no
event earlier than 18 months from the Closing Date, and (ii) the
date (if any)
on which such Mortgage Loan becomes a Specially Serviced Mortgage
Loan. The
Trustee shall submit such documents for recording, at the Seller's
expense,
after the periods set forth above; provided, however, the Trustee
shall not
submit such assignments for recording if the Seller produces
evidence that it
has sent any such assignment for recording and certifies that the
Seller is
awaiting its return from the applicable recording office. In
addition, not later
than the 30th day following the Closing Date, the Seller shall
deliver to or on
behalf of the Trustee each of the remaining documents or
instruments specified
below (with such exceptions and additional time periods as are
permitted by this
Section) with respect to each Mortgage Loan (each, a "Mortgage
File"). (The
Seller acknowledges that the term "without recourse" does not
modify the duties
of the Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by or on behalf of the Trustee in
escrow on behalf
of the Seller at all times prior to the Closing Date. The Mortgage
Files shall
be released from escrow upon closing of the sale of the Mortgage
Loans and
payments of the purchase price therefor as contemplated hereby. The
Mortgage
File for each Mortgage Loan shall contain the following
documents:
(a) The original Mortgage Note bearing all intervening
endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank
National
Association, as Trustee for Morgan Stanley Capital I Inc.,
Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse,
representation or
warranty" or if the original Mortgage Note is not included therein,
then a lost
note affidavit and indemnity, with a copy of the Mortgage Note
attached thereto;
(b) The original Mortgage, with evidence of recording thereon,
and,
if the Mortgage was executed pursuant to a power of attorney, a
certified true
copy of the power of attorney certified by the public recorder's
office, with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed), or certified by a title
insurance
company, Seller, or escrow company to be a true copy thereof;
provided that if
such original Mortgage cannot be delivered with evidence of
recording thereon on
or prior to the 90th day following the Closing Date because of a
delay caused by
the public recording office where such original Mortgage has been
delivered for
recordation or because such original Mortgage has been lost, the
Seller shall
deliver or cause to be delivered to the Trustee a true and correct
copy of such
Mortgage, together with (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate (as defined below) of
the Seller
stating that such original Mortgage has been sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original Mortgage
that has been lost after recordation, a certification by the
appropriate county
recording office where such Mortgage is recorded that such copy is
a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or
other
material modification, consolidation and extension agreements, if
any, with
evidence of recording thereon (if applicable) or if any such
original
modification, consolidation or extension agreement has been
delivered to the
appropriate recording office for recordation and either has not yet
been
returned on or prior to the 90th day following the Closing Date
with evidence of
recordation thereon or has been lost after recordation, a true copy
of such
modification, consolidation or extension certified by the Seller
together with
(i) in the case of a delay caused by the public recording office,
an Officer's
Certificate of the Seller stating that such original modification,
consolidation
or extension agreement has been dispatched or sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original
modification, consolidation or extension agreement that has been
lost after
recordation, a certification by the appropriate county recording
office where
such document is recorded that such copy is a true and complete
copy of the
original recorded modification, consolidation or extension
agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan,
in
form and substance acceptable for recording (except for recording
information
not yet available if the instrument being recorded has not been
returned from
the applicable recording office), signed by the holder of record in
blank or in
favor of "LaSalle Bank National Association, as Trustee for Morgan
Stanley
Capital I Inc., Commercial Mortgage Pass-Through Certificates,
Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if
any,
with evidence of recording thereon or, if such original assignments
of Mortgage
have been delivered to the appropriate recorder's office for
recordation,
certified true copies of such assignments of Mortgage certified by
the Seller,
or in the case of an original blanket intervening assignment of
Mortgage
retained by the Seller, a copy thereof certified by the Seller or,
if any
original intervening assignment of Mortgage has not yet been
returned on or
prior to the 90th day following the Closing Date from the
applicable recording
office or has been lost, a true and correct copy thereof, together
with (i) in
the case of a delay caused by the public recording office, an
Officer's
Certificate of the Seller stating that such original intervening
assignment of
Mortgage has been sent to the appropriate public recording official
for
recordation or (ii) in the case of an original intervening
assignment of
Mortgage that has been lost after recordation, a certification by
the
appropriate county recording office where such assignment is
recorded that such
copy is a true and complete copy of the original recorded
intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence
of recording
thereon or certified by a title insurance company, Seller, or
escrow company to
be a true copy thereof; provided that if such Assignment of Leases
has not been
returned on or prior to the 90th day following the Closing Date
because of a
delay caused by the applicable public recording office where such
Assignment of
Leases has been delivered for recordation or because such original
Assignment of
Leases has been lost, the Seller shall deliver or cause to be
delivered to the
Trustee a true and correct copy of such Assignment of Leases
submitted for
recording, together with, (i) in the case of a delay caused by the
public
recording office, an Officer's Certificate (as defined below) of
the Seller
stating that such Assignment of Leases has been sent to the
appropriate public
recording official for recordation or (ii) in the case of an
original Assignment
of Leases that has been lost after recordation, a certification by
the
appropriate county recording office where such Assignment of Leases
is recorded
that such copy is a true and complete copy of the original recorded
Assignment
of Leases, in each case together with an original assignment of
such Assignment
of Leases, in recordable form (except for recording information not
yet
available if the instrument being recorded has not been returned
from the
applicable recording office), signed by the holder of record in
favor of
"LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16," which
assignment may be effected in the related Assignment of
Mortgage;
(g) The original or a copy of each guaranty, if any,
constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder,
actual
"marked-up" title commitment, pro forma policy, or an agreement to
provide any
of the foregoing pursuant to binding escrow instructions executed
by the title
company or its authorized agent with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a copy of any of the
foregoing
certified by the title company with the original Title Insurance
Policy to
follow within 180 days of the Closing Date, or a preliminary title
report with
the original Title Insurance Policy to follow within 180 days of
the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and
(B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements
to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any
Mortgage
Loan where the Mortgagor is the lessee under such ground lease and
there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other
than letters of
credit representing tenant security deposits which have been
collaterally
assigned to the lender), which shall be assigned and delivered to
the Trustee on
behalf of the Trust with a copy to be held by the applicable
Primary Servicer,
if any (or the applicable Master Servicer), and applied, drawn,
reduced or
released in accordance with documents evidencing or securing the
applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary
Servicing
Agreement or (B) the original of each letter of credit, if any,
constituting
additional collateral for such Mortgage Loan (other than letters of
credit
representing tenant security deposits which have been collaterally
assigned to
the lender), which shall be held by the applicable Primary
Servicer, if any (or
the applicable Master Servicer), on behalf of the Trustee, with a
copy to be
held by the Trustee, and applied, drawn, reduced or released in
accordance with
documents evidencing or securing the applicable Mortgage Loan, the
Pooling and
Servicing Agreement and the Primary Servicing Agreement (it being
understood
that the Seller has agreed (a) that the proceeds of such letter of
credit belong
to the Trust, (b) to notify, on or before the Closing Date, the
bank issuing the
letter of credit that the letter of credit and the proceeds thereof
belong to
the Trust, and to use reasonable efforts to obtain within 30 days
(but in any
event to obtain within 90 days) following the Closing Date, an
acknowledgement
thereof by the bank (with a copy of such acknowledgement to be sent
to the
Trustee) or a reissued letter of credit and (c) to indemnify the
Trust for any
liabilities, charges, costs, fees or other expenses accruing from
the failure of
the Seller to assign the letter of credit hereunder). In the case
of clause (B)
above, any letter of credit held by the applicable Primary Servicer
(or Master
Servicer) shall be held in its capacity as agent of the Trust, and
if the
applicable Primary Servicer (or Master Servicer) sells its rights
to service the
applicable Mortgage Loan, the applicable Primary Servicer (or
Master Servicer)
has agreed to assign the applicable letter of credit to the Trust
or at the
direction of the applicable Special Servicer to such party as such
Special
Servicer may instruct, in each case, at the expense of the
applicable Primary
Servicer (or Master Servicer). The applicable Primary Servicer (or
Master
Servicer) has agreed to indemnify the Trust for any loss caused by
the
ineffectiveness of such assignment;
(m) The original or a copy of the environmental indemnity
agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for
all
hotels and for such other Mortgaged Properties securing Mortgage
Loans with a
Cut-Off Date principal balance equal to or greater than
$20,000,000;
(o) The original of any Environmental Insurance Policy or, if
the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in
favor
of the lender;
(q) With respect to hospitality properties, a copy of any
franchise
agreement, franchise comfort letter and applicable assignment or
transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one
or
more of the Chairman of the Board, any Vice Chairman, the
President, any Senior
Vice President, any Vice President, any Assistant Vice President,
any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage
and
assignment of Assignment of Leases referred to in clauses (d), (e)
and (f) may
be in the form of a single instrument assigning the Mortgage and
the Assignment
of Leases to the extent permitted by applicable law. To avoid the
unnecessary
expense and administrative inconvenience associated with the
execution and
recording or filing of multiple assignments of mortgages,
assignments of leases
(to the extent separate from the mortgages) and assignments of UCC
financing
statements, the Seller shall execute, in accordance with the third
succeeding
paragraph, the assignments of mortgages, the assignments of leases
(to the
extent separate from the mortgages) and the assignments of UCC
financing
statements relating to the Mortgage Loans naming the Trustee on
behalf of the
Certificateholders as assignee. Notwithstanding the fact that such
assignments
of mortgages, assignments of leases (to the extent separate from
the assignments
of mortgages) and assignments of UCC financing statements shall
name the Trustee
on behalf of the Certificateholders as the assignee, the parties
hereto
acknowledge and agree that the Mortgage Loans shall for all
purposes be deemed
to have been transferred from the Seller to the Purchaser and from
the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, any of the documents and/or instruments referred to
in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because
of a delay
caused by the public recording office where such document or
instrument has been
delivered for recordation within such 90-day period, but the Seller
delivers a
photocopy thereof (to the extent available, certified by the
appropriate county
recorder's office to be a true and complete copy of the original
thereof
submitted for recording or, if such certification is not available,
together
with an Officer's Certificate of the Seller stating that such
document has been
sent to the appropriate public recording official for recordation),
to the
Trustee within such 90-day period, the Seller shall then deliver
within 180 days
after the Closing Date the recorded document (or within such longer
period after
the Closing Date as the Trustee may consent to, which consent shall
not be
withheld so long as the Seller is, as certified in writing to the
Trustee no
less often than monthly, in good faith attempting to obtain from
the appropriate
county recorder's office such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall
be
entitled to all scheduled payments of principal due thereon after
the Cut-Off
Date, all other payments of principal collected after the Cut-Off
Date (other
than scheduled payments of principal due on or before the Cut-Off
Date), and all
payments of interest on the Mortgage Loans allocable to the period
commencing on
the Cut-Off Date. All scheduled payments of principal and interest
due on or
before the Cut-Off Date and collected after the Cut-Off Date shall
belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall
deliver
and the Purchaser, the Trustee or the agents of either may submit
or cause to be
submitted for recordation at the expense of the Seller, in the
appropriate
public office for real property records, each assignment referred
to in clauses
(d) and (f)(ii) above (with recording information in blank if such
information
is not yet available). Within 15 days following the Closing Date,
the Seller
shall deliver and the Purchaser, the Trustee or the agents of
either may submit
or cause to be submitted for filing, at the expense of the Seller,
in the
appropriate public office for Uniform Commercial Code financing
statements, the
assignment referred to in clause (i) above. If any such document or
instrument
is lost or returned unrecorded or unfiled, as the case may be,
because of a
defect therein, the Seller shall prepare a substitute therefor or
cure such
defect, and the Seller shall, at its own expense (except in the
case of a
document or instrument that is lost by the Trustee), record or
file, as the case
may be, and deliver such document or instrument in accordance with
this Section
2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise
agreement,
the Seller shall provide a notice on or prior to the date that is
thirty (30)
days after the Closing Date to the franchisor of the transfer of
such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement,
and inform
the franchisor that any notices to the Mortgagor's lender pursuant
to such
franchise agreement should thereafter be forwarded to the
applicable Master
Servicer and provide a franchise comfort letter from the franchisor
on or prior
to the date that is thirty (30) days after the Closing Date. As to
each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter
of credit is
in place, the Seller shall notify, on or before the Closing Date,
the bank
issuing the letter of credit that such Mortgage Loan will be
transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such
letter of credit
and the proceeds thereof belong to the Trust after such transfer,
and inform
such issuing bank that any notices to the Mortgagor's lender
pursuant to such
letter of credit should thereafter be forwarded to the Master
Servicer, and use
reasonable efforts to obtain within 30 days (but in any event to
obtain within
90 days) following the Closing Date, an acknowledgement of the
above notice by
the bank (with a copy of such acknowledgement to be sent to the
Custodian on
behalf of the Trustee) or a reissued letter of credit. After the
Closing Date,
with respect to any letter of credit that has not yet been assigned
to the
Trust, upon the written request of the applicable Master Servicer
or the
applicable Primary Servicer, the Seller will draw on such letter of
credit as
directed by such Master Servicer or such Primary Servicer in such
notice to the
extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents
or
its subcontractors that relate to the servicing of any Mortgage
Loans and that
are not required to be a part of the Mortgage File and are
reasonably necessary
for the ongoing administration and/or servicing of the applicable
Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at
the direction
of the applicable Master Servicer, on behalf of the Purchaser, on
or prior to
the 75th day after the Closing Date, in accordance with the Primary
Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be
(and
actually) delivered to the Seller pursuant to the applicable
Mortgage Loan
documents, copies of the following items: the Mortgage Note, any
Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any
guaranty/indemnity
agreement, any loan agreement, the insurance policies or
certificates, as
applicable, the property inspection reports, any financial
statements on the
property, any escrow analysis, the tax bills, the Appraisal, the
environmental
report, the engineering report, the asset summary, financial
information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any
intercreditor
agreements and any Environmental Insurance Policies; provided,
however, the
Seller shall not be required to deliver any draft documents,
attorney-client
privileged communications, internal correspondence or credit
analysis. Delivery
of any of the foregoing documents to the applicable Primary
Servicer (if any)
shall be deemed a delivery to the applicable Master Servicer and
satisfy
Seller's obligations under this sub-paragraph. Each of the
foregoing items shall
be delivered by the Seller in electronic form, to the extent such
document is
available in such form and such form is reasonably acceptable to
the applicable
Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the
Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note,
Mortgage and
the other contents of the related Mortgage File shall be vested in
the Purchaser
and its assigns, and the ownership of all records and documents
with respect to
the related Mortgage Loan prepared by or that come into the
possession of the
Seller shall immediately vest in the Purchaser and its assigns, and
shall be
delivered promptly by the Seller to or on behalf of either the
Trustee or the
applicable Master Servicer as set forth herein, subject to the
requirements of
the Primary Servicing Agreement. The Seller's and Purchaser's
records shall
reflect the transfer of each Mortgage Loan from the Seller to the
Purchaser and
its assigns as a sale.
It is the express intent of the parties hereto that the
conveyance
of the Mortgage Loans and related property to the Purchaser by the
Seller as
provided in this Section 2 be, and be construed as, an absolute
sale of the
Mortgage Loans and related property. It is, further, not the
intention of the
parties that such conveyance be deemed a pledge of the Mortgage
Loans and
related property by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller. However, in the event that,
notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held
to be the
property of the Seller, or if for any other reason this Agreement
is held or
deemed to create a security interest in the Mortgage Loans or any
related
property, then:
(i) this Agreement shall be deemed to be a security agreement;
and
(ii) the conveyance provided for in this Section 2 shall be
deemed
to be a
grant by the Seller to the Purchaser of a security interest in
all
of the
Seller's right, title, and interest, whether now owned or
hereafter
acquired,
in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit and
investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the
Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance
policies,
all distributions with respect thereto payable after the
Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates
of
deposit, goods, letters of credit, advices of credit,
investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other
Persons
with respect to, all or any part of the collateral described in
clause (A)
above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit,
advices of
credit, instruments, money, documents, chattel paper or
certificated securities
shall be deemed to be possession by the secured party or possession
by a
purchaser for purposes of perfecting the security interest pursuant
to the
Uniform Commercial Code (including, without limitation, Sections
9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding
the
foregoing, the Seller makes no representation or warranty as to the
perfection
of any such security interest.
Notifications to Persons holding such property, and
acknowledgments,
receipts, or confirmations from persons holding such property,
shall be deemed
to be notifications to, or acknowledgments, receipts or
confirmations from,
securities intermediaries, bailees or agents of, or Persons holding
for, the
Purchaser or its designee, as applicable, for the purpose of
perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement,
take
such reasonable actions as may be necessary to ensure that, if this
Agreement
were deemed to create a security interest in the property described
above, such
security interest would be deemed to be a perfected security
interest of first
priority under applicable law and will be maintained as such
throughout the term
of the Agreement. In such case, the Seller shall file all filings
necessary to
maintain the effectiveness of any original filings necessary under
the Uniform
Commercial Code as in effect in any jurisdiction to perfect such
security
interest in such property. In connection herewith, the Purchaser
shall have all
of the rights and remedies of a secured party and creditor under
the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to
purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described
in clause (a)
above) or lost note affidavit and indemnity required to be
delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to
this Section
2 on or before the Closing Date is not so delivered, or is not
properly executed
or is defective on its face, and the Purchaser's acceptance of the
related
Mortgage Loan on the Closing Date shall in no way constitute a
waiver of such
omission or defect or of the Purchaser's or its successors' and
assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence
Review.
The Seller shall (i) deliver to the Purchaser on or before the
Closing Date a
diskette acceptable to the Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by the Purchaser,
(ii) deliver to
the Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at the Purchaser's headquarters in New York, and (iii)
otherwise
cooperate fully with the Purchaser in its examination of the credit
files,
underwriting documentation and Mortgage Files for the Mortgage
Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser
has
conducted or has failed to conduct any partial or complete
examination of the
credit files, underwriting documentation or Mortgage Files for the
Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to
cause the
Seller to cure any Material Document Defect or Material Breach
(each as defined
below), or to repurchase or replace the defective Mortgage Loans
pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the
Initial
Purchaser, the Trustee, the applicable Special Servicer and each
Rating Agency
to examine and audit all books, records and files pertaining to the
Mortgage
Loans, the Seller's underwriting procedures and the Seller's
ability to perform
or observe all of the terms, covenants and conditions of this
Agreement. Such
examinations and audits shall take place at one or more offices of
the Seller
during normal business hours and shall not be conducted in a manner
that is
disruptive to the Seller's normal business operations upon
reasonable prior
advance notice. In the course of such examinations and audits, the
Seller will
make available to such representatives of any of the Purchaser,
each
Underwriter, the Initial Purchaser, the Trustee, the applicable
Special Servicer
and each Rating Agency reasonably adequate facilities, as well as
the assistance
of a sufficient number of knowledgeable and responsible individuals
who are
familiar with the Mortgage Loans and the terms of this Agreement,
and the Seller
shall cooperate fully with any such examination and audit in all
material
respects. On or prior to the Closing Date, the Seller shall provide
the
Purchaser with all material information regarding the Seller's
financial
condition and access to knowledgeable financial or accounting
officers for the
purpose of answering questions with respect to the Seller's
financial condition,
financial statements as provided to the Purchaser or other
developments
affecting the Seller's ability to consummate the transactions
contemplated
hereby or otherwise affecting the Seller in any material respect.
Within 45 days
after the Closing Date, the Seller shall provide the applicable
Master Servicer
or Primary Servicer, if applicable, with any additional information
identified
by such Master Servicer or Primary Servicer, if applicable, as
necessary to
complete the CMSA Property File, to the extent that such
information is
available.
The Purchaser may exercise any of its rights hereunder through
one
or more designees or agents; provided the Purchaser has provided
the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding
the
Seller and the Mortgage Loans that has been delivered into the
Purchaser's
possession and that is not otherwise publicly available; provided,
however, that
such information shall not be kept confidential (and the right to
require
confidentiality under any confidentiality agreement is hereby
waived) to the
extent such information is required to be included in the
Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court
order to
disclose such information. If the Purchaser is required to disclose
in the
Memorandum or the Prospectus Supplement confidential information
regarding the
Seller as described in the preceding sentence, the Purchaser shall
provide to
the Seller a copy of the proposed form of such disclosure prior to
making such
disclosure and the Seller shall promptly, and in any event within
two Business
Days, notify the Purchaser of any inaccuracies therein, in which
case the
Purchaser shall modify such form in a manner that corrects such
inaccuracies. If
the Purchaser is required by law or court order to disclose
confidential
information regarding the Seller as described in the second
preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's
efforts to
obtain a protective order or other reasonable assurance that
confidential
treatment will be accorded such information and, if in the absence
of a
protective order or such assurance, the Purchaser is compelled as a
matter of
law to disclose such information, the Purchaser shall, prior to
making such
disclosure, advise and consult with the Seller and its counsel as
to such
disclosure and the nature and wording of such disclosure and the
Purchaser shall
use reasonable efforts to obtain confidential treatment
therefor.
Notwithstanding the foregoing, if reasonably advised by counsel
that the
Purchaser is required by a regulatory agency or court order to make
such
disclosure immediately, then the Purchaser shall be permitted to
make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the
Seller
hereby makes for the benefit of the Purchaser and its assigns with
respect to
each Mortgage Loan as of the date hereof (or as of such other date
specifically
set forth in the particular representation and warranty) each of
the
representations and warranties set forth on Exhibit 2 hereto,
except as
otherwise set forth on Schedule A attached hereto, and hereby
further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
federal
savings bank in good standing under the laws of the United
States
of
America. The Seller has the requisite power and authority and
legal
right to
own the Mortgage Loans and to transfer and convey the Mortgage
Loans to
the Purchaser and has the requisite power and authority to
execute
and deliver, engage in the transactions contemplated by, and
perform
and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed
and
delivered by the Seller, and assuming the due authorization,
execution
and
delivery hereof by the Purchaser, this Agreement constitutes
the
valid,
legal and binding agreement of the Seller, enforceable in
accordance
with its terms, except as such enforcement may be limited by
(A) laws
relating to bankruptcy, insolvency, reorganization,
receivership
or
moratorium, (B) other laws relating to or affecting the rights
of
creditors
generally, (C) general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law) or
(D)
public
policy considerations underlying the securities laws, to the
extent
that such
public policy considerations limit the enforceability of the
provisions
of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or
the
consummation by the Seller of any transaction contemplated hereby,
other
than (1)
such qualifications as may be required under state securities
or
blue sky
laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary
in
connection
with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such
consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4)
where the
lack of
such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse
effect on
the
performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the
Purchaser,
nor the
execution, delivery or performance of this Agreement by the
Seller,
conflicts or will conflict with, results or will result in a
breach of,
or constitutes or will constitute a default under (A) any term
or
provision of the Seller's articles of organization or by-laws, (B)
any
term or
provision of any material agreement, contract, instrument or
indenture
to which the Seller is a party or by which it or any of its
assets is
bound or results in the creation or imposition of any lien,
charge or
encumbrance upon any of its property pursuant to the terms of
any such
indenture, mortgage, contract or other instrument, other than
pursuant
to this Agreement, or (C) after giving effect to the consents
or
taking of
the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any
court or
governmental authority having jurisdiction over the Seller or its
assets,
except
where in any of the instances contemplated by clauses (B) or
(C)
above, any
conflict, breach or default, or creation or imposition of any
lien,
charge or encumbrance, will not have a material adverse effect
on
the
consummation of the transactions contemplated hereby by the Seller
or
materially
and adversely affect its ability to perform its obligations and
duties
hereunder or result in any material adverse change in the
business,
operations, financial condition, properties or assets of the
Seller, or in
any
material impairment of the right or ability of the Seller to carry
on
its
business substantially as now conducted.
(v) There are no actions or proceedings against, or
investigations
of, the
Seller pending or, to the Seller's knowledge, threatened in
writing
against the Seller before any court, administrative agency or
other
tribunal, the outcome of which could reasonably be expected to
materially
and adversely affect the transfer of the Mortgage Loans to the
Purchaser
or the execution or delivery by, or enforceability against, the
Seller of
this Agreement or have an effect on the financial condition of
the Seller
that would materially and adversely affect the ability of the
Seller to
perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant
to
this
Agreement will effect a transfer by the Seller of all of its
right,
title and
interest in and to the Mortgage Loans to the Purchaser.
(vii) To the Seller's knowledge, the Loan Seller Information
(as
defined in
that certain indemnification agreement, dated as of November
15, 2007,
between the Seller, the Purchaser, the Underwriters and the
Initial
Purchaser (the "Indemnification Agreement")) contained in the
Disclosure
Information (as defined in the Indemnification Agreement), the
Memorandum
and the Prospectus Supplement (i) does not contain any untrue
statement
of a material fact or omit to state a material fact necessary
to
make the
statements therein, in the light of the circumstances under
which
they were
made, not misleading and (ii) (other than the Memorandum)
complies
with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the
Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the
Seller
hereby covenants that the foregoing representations and warranties
and those set
forth on Exhibit 2 hereto will be true and correct in all material
respects on
and as of the Closing Date with the same effect as if made on the
Closing Date,
provided that any representations and warranties made as of a
specified date
shall be true and correct in all material respects as of such
specified date.
Each of the representations, warranties and covenants made by
the
Seller pursuant to this Section 4(a) shall survive the sale of the
Mortgage
Loans and shall continue in full force and effect notwithstanding
any
restrictive or qualified endorsement on the Mortgage Notes.
(b) To induce the Seller to enter into this Agreement, the
Purchaser
hereby represents and warrants to the Seller as of the date
hereof:
(i) The Purchaser is a corporation duly organized, validly
existing,
and in
good standing under the laws of the State of Delaware with full
power and
authority to carry on its business as presently conducted by
it.
(ii) The Purchaser has full power and authority to acquire the
Mortgage
Loans, to execute and deliver this Agreement and to enter into
and
consummate all transactions contemplated by this Agreement. The
Purchaser
has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed
and
delivered
this Agreement. This Agreement, assuming due authorization,
execution
and delivery by the Seller, constitutes the valid and binding
obligation
of the Purchaser, enforceable against it in accordance with its
terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting
the
enforcement of creditors' rights generally and by general
principles
of equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(iii) No consent, approval, authorization or order of,
registration
or filing
with, or notice to, any governmental authority or court is
required,
under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement,
or the
consummation by the Purchaser of any transaction contemplated
hereby that
has not
been obtained or made by the Purchaser.
(iv) Neither the purchase of the Mortgage Loans nor the
execution,
delivery
and performance of this Agreement by the Purchaser will violate
the
Purchaser's certificate of incorporation or by-laws or constitute
a
default
(or an event that, with notice or lapse of time or both, would
constitute
a default) under, or result in a breach of, any material
agreement,
contract, instrument or indenture to which the Purchaser is a
party or
that may be applicable to the Purchaser or its assets.
(v) The Purchaser's execution and delivery of this Agreement and
its
performance and compliance with the terms of this Agreement will
not
constitute
a violation of, any law, rule, writ, injunction, order or
decree of
any court, or order or regulation of any federal, state or
municipal
government agency having jurisdiction over the Purchaser or its
assets,
which violation could materially and adversely affect the
condition
(financial or otherwise) or the operation of the Purchaser or
its assets
or could materially and adversely affect its ability to perform
its
obligations and duties hereunder.
(vi) There are no actions or proceedings against, or
investigations
of, the
Purchaser pending or, to the Purchaser's knowledge, threatened
against
the Purchaser before any court, administrative agency or other
tribunal,
the outcome of which could reasonably be expected to adversely
affect the
transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this
Agreement
or have an
effect on the financial condition of the Purchaser that would
materially
and adversely affect the ability of the Purchaser to perform
its
obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment
banker,
agent or other person, other than the Seller, the Underwriters,
the
Initial Purchaser and their respective affiliates, that may be
entitled
to any commission or compensation in connection with the sale
of
the
Mortgage Loans or consummation of any of the transactions
contemplated
hereby.
To induce the Seller to enter into this Agreement, the
Purchaser
hereby covenants that the foregoing representations and warranties
will be true
and correct in all material respects on and as of the Closing Date
with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the
Purchaser
pursuant to this Section 4(b) shall survive the purchase of the
Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and
Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for
the
benefit of the Trustee on behalf of the holders of the
Certificates, whether
directly or by way of the Purchaser's assignment of its rights
hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2
hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby
further acknowledged that if any document required
to be delivered to the Trustee pursuant to Section 2 is not
delivered as and
when required (and including the expiration of any grace or cure
period), is not
properly executed or is defective on its face, or if there is a
breach of any of
the representations and warranties required to be made by the
Seller regarding
the characteristics of the Mortgage Loans and/or the related
Mortgaged
Properties as set forth in Exhibit 2 hereto, and in either case
such defect or
breach, either (i) materially and adversely affects the interests
of the holders
of the Certificates in the related Mortgage Loan, or (ii) both (A)
the document
defect or breach materially and adversely affects the value of the
Mortgage Loan
and (B) the Mortgage Loan is a Specially Serviced Mortgage Loan or
Rehabilitated
Mortgage Loan (such a document defect described in the preceding
clause (i) or
(ii), a "Material Document Defect" and such a breach described in
the preceding
clause (i) or (ii) a "Material Breach"), the party discovering such
Material
Document Defect or Material Breach shall promptly notify, in
writing, the other
party; provided that any breach of the representation and warranty
contained in
paragraph (38) of such Exhibit 2 shall constitute a Material Breach
only if such
prepayment premium or yield maintenance charge is not deemed
"customary" for
commercial mortgage loans as evidenced by (i) an opinion of tax
counsel to such
effect or (ii) a determination by the Internal Revenue Service that
such
provision is not customary. Promptly (but in any event within three
Business
Days) upon becoming aware of any such Material Document Defect or
Material
Breach, the applicable Master Servicer shall, and the applicable
Special
Servicer may, request that the Seller, not later than 90 days from
the Seller's
receipt of the notice of such Material Document Defect or Material
Breach, cure
such Material Document Defect or Material Breach, as the case may
be, in all
material respects; provided, however, that if such Material
Document Defect or
Material Breach, as the case may be, cannot be corrected or cured
in all
material respects within such 90-day period, and such Material
Document Defect
or Material Breach would not cause the Mortgage Loan to be other
than a
"qualified mortgage" (as defined in the Code), but the Seller is
diligently
attempting to effect such correction or cure, as certified by the
Seller in an
Officer's Certificate delivered to the Trustee, then the cure
period will be
extended for an additional 90 days unless, solely in the case of a
Material
Document Defect, (x) the Mortgage Loan is, at the end of the
initial 90-day
period, a Specially Serviced Mortgage Loan and a Servicing Transfer
Event has
occurred as a result of a monetary default or as described in
clause (ii) or
clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and
Servicing Agreement and (y) the Material Document Defect was
identified in a
certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of
the Pooling and Servicing Agreement not less than 90 days prior to
the delivery
of the notice of such Material Document Defect. The parties
acknowledge that
neither delivery of a certification or schedule of exceptions to
the Seller
pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor
possession of such certification or schedule by the Seller shall,
in and of
itself, constitute delivery of notice of any Material Document
Defect or
knowledge or awareness by the Seller of any Material Document
Defect listed
therein.
The Seller hereby covenants and agrees that, if any such
Material
Document Defect or Material Breach cannot be corrected or cured in
all material
aspects within the above cure periods, the Seller shall, on or
before the
termination of such cure periods, either (i) repurchase the
affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the
Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if
within the
two-year period commencing on the Closing Date, at its option
replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such
defect relates
with a Qualifying Substitute Mortgage Loan. If such Material
Document Defect or
Material Breach would cause the Mortgage Loan to be other than a
"qualified
mortgage" (as defined in the Code), then notwithstanding the
previous sentence,
such repurchase or substitution must occur within 90 days from the
earlier of
the date the Seller discovered or was notified of the breach or
defect. The
Seller agrees that any substitution shall be completed in
accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as
contemplated
above, (ii) such Mortgage Loan is cross-collateralized and
cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the
applicable document
defect or breach does not constitute a Material Document Defect or
Material
Breach, as the case may be, as to such other Mortgage Loans
(without regard to
this paragraph), then the applicable document defect or breach (as
the case may
be) shall be deemed to constitute a Material Document Defect or
Material Breach,
as the case may be, as to each such other Mortgage Loan for
purposes of the
above provisions, and the Seller shall be obligated to repurchase
or replace
each such other Mortgage Loan in accordance with the provisions
above, unless,
in the case of such breach or document defect, both of the
following conditions
would be satisfied if the Seller were to repurchase or replace only
those
Mortgage Loans as to which a Material Breach had occurred without
regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage
ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the
four calendar
quarters immediately preceding the repurchase or replacement
(determined as
provided in the definition of Debt Service Coverage Ratio in the
Pooling and
Servicing Agreement, except that net cash flow for such four
calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x)
the debt
service coverage ratio for all such Mortgage Loans (including the
Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to
the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value
Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not
greater than
the lesser of (x) the current loan-to-value ratio for all such
Mortgage Loans
(including the Affected Loan(s)) set forth under the heading
"Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The
determination
of the applicable Master Servicer as to whether either of the
conditions set
forth above has been satisfied shall be conclusive and binding in
the absence of
manifest error. The applicable Master Servicer will be entitled to
cause, or
direct the Seller to cause, to be delivered to the applicable
Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related
Mortgaged
Properties for purposes of determining whether the condition set
forth in clause
(2) above has been satisfied, in each case at the expense of the
Seller if the
scope and cost of the Appraisal is approved by the Seller (such
approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not
requiring the
repurchase of each such Cross-Collateralized Loan will not result
in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted
and/or
cross-collateralized with any other Mortgage Loan conveyed
hereunder, to the
extent that the Seller is required to repurchase or substitute for
such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above
while the
Trustee (as assignee of the Purchaser) continues to hold any other
Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-
Collateralized Loan") with such Repurchased Loan, the Seller and
the Purchaser
hereby agree to modify, upon such repurchase or substitution, the
related
Mortgage Loan documents in a manner such that such affected
Repurchased Loan, on
the one hand, and any related Crossed-Collateralized Loans held by
the Trustee,
on the other, would no longer be cross-defaulted or
cross-collateralized with
one another; provided that the Seller shall have furnished the
Trustee, at the
expense of the Seller, a nondisqualification opinion that such
modification
shall not cause an Adverse REMIC Event; provided, further, that if
such
nondisqualification opinion cannot be furnished, the Seller and the
Purchaser
agreed that such repurchase or substitution of only the Repurchased
Loan,
notwithstanding anything to the contrary herein, shall not be
permitted and the
Seller shall repurchase or substitute for the Repurchased Loan and
all related
Crossed-Collateralized Loans. Any reserve or other cash collateral
or letters of
credit securing the Cross-Collateralized Loans shall be allocated
between such
Mortgage Loans in accordance with the Mortgage Loan documents. All
other terms
of the Mortgage Loans shall remain in full force and effect,
without any
modification thereof. The Mortgagors set forth on Schedule B hereto
are intended
third-party beneficiaries of the provisions set forth in this
paragraph and the
preceding paragraph. The provisions of this paragraph and the
preceding
paragraph may not be modified with respect to any Mortgage Loan
without the
related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period),
any
of the following document defects shall be conclusively presumed
materially and
adversely to affect the interests of Certificateholders in a
Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage
File of the
original signed Mortgage Note, unless the Mortgage File contains a
signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii)
the absence
from the Mortgage File of the item called for by paragraph (b) of
the definition
of Mortgage File; or (iii) the absence from the Mortgage File of
the item called
for by paragraph (h) of the definition of Mortgage File. If any of
the foregoing
Material Document Defects is discovered by the Custodian (or the
Trustee if
there is no Custodian), the Trustee (or as set forth in Section
2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer)
will take the
steps described elsewhere in this Section, including the giving of
notices to
the Rating Agencies and the parties hereto and making demand upon
the Seller for
the cure of the Material Document Defect or repurchase or
replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or
Material
Breach exists with respect to a Mortgage Loan or otherwise refuses
(i) to effect
a correction or cure of such Material Document Defect or Material
Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace
such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that
(x) the
period of time provided for the Seller to correct, repurchase or
cure has
expired and (y) the Mortgage Loan is then in default and is then a
Specially
Serviced Mortgage Loan, the applicable Special Servicer may,
subject to the
Servicing Standard, modify, work-out or foreclose, sell or
otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to
Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the
Pooling and
Servicing Agreement, while pursuing the repurchase claim. The
Seller
acknowledges and agrees that any modification of the Mortgage Loan
pursuant to
such a work-out shall not constitute a defense to any repurchase
claim nor shall
such modification or work-out change the Purchase Price due from
the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure
upon such
Mortgage Loan and sale of the REO Property, to a Person other than
the Seller
shall be without (i) recourse of any kind (either express or
implied) by such
Person against the Seller and (ii) representation or warranty of
any kind
(either express or implied) by the Seller to or for the benefit of
such Person.
The fact that a Material Document Defect or Material Breach is
not
discovered until after foreclosure (but in all instances prior to
the sale of
the related REO Property or Mortgage Loan) shall not prejudice any
claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property.
In such an
event, the applicable Master Servicer or Special Servicer, as
applicable, shall
be required to notify the Seller of the discovery of the Material
Document
Defect or Material Breach and the Seller shall be required to
follow the
procedures set forth in this Agreement to correct or cure such
Material Document
Defect or Material Breach or purchase the REO Property at the
Purchase P
