EXECUTION VERSION
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MORTGAGE LOAN PURCHASE AGREEMENT
between
MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC
as Seller
and
MORGAN STANLEY CAPITAL I INC.
as Purchaser
Dated as of July 26, 2007
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TABLE OF CONTENTS
1. AGREEMENT TO
PURCHASE.....................................................3
2. CONVEYANCE OF MORTGAGE
LOANS..............................................3
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE
REVIEW...................11
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND
PURCHASER...................13
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE BY
SELLER....16
6.
CLOSING..................................................................21
7. CLOSING
DOCUMENTS........................................................22
8.
COSTS....................................................................25
9.
NOTICES..................................................................25
10. SEVERABILITY OF
PROVISIONS...............................................25
11. FURTHER
ASSURANCES.......................................................25
12.
SURVIVAL.................................................................25
13. GOVERNING
LAW............................................................26
14. BENEFITS OF MORTGAGE LOAN PURCHASE
AGREEMENT.............................26
15.
MISCELLANEOUS............................................................26
16. ENTIRE
AGREEMENT.........................................................26
Exhibit 1 Mortgage Loan Schedule
Exhibit 2 Representations and Warranties
Exhibit 3 Bill of Sale
Exhibit 4 Power of Attorney
Index of Defined Terms
Affected
Loan(s)..............................................................18
Agreement......................................................................2
Certificate Purchase
Agreement.................................................2
Certificates...................................................................2
Closing
Date...................................................................3
Collateral
Information........................................................11
Crossed Mortgage
Loans........................................................17
Custodian......................................................................2
Defective Mortgage
Loan.......................................................17
Final Judicial
Determination..................................................20
Indemnification
Agreement.....................................................14
Initial
Purchaser..............................................................2
Master
Servicer................................................................2
Material
Breach...............................................................16
Material Document
Defect......................................................16
Memorandum.....................................................................2
MERS
..........................................................................5
Mortgage
File..................................................................4
Mortgage Loan
Schedule.........................................................3
Mortgage
Loans.................................................................2
Officer's
Certificate..........................................................8
Pooling and Servicing
Agreement................................................2
Private
Certificates...........................................................2
Prospectus
Supplement..........................................................2
Public
Certificates............................................................2
Purchaser......................................................................2
Repurchased
Loan..............................................................18
Seller.........................................................................2
Servicing
File.................................................................9
Special
Servicer...............................................................2
Trust..........................................................................2
Trustee........................................................................2
Underwriters...................................................................2
Underwriting
Agreement.........................................................2
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MORTGAGE LOAN PURCHASE AGREEMENT
(MSMCH LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
July 26, 2007,
between Morgan Stanley Mortgage Capital Holdings LLC (the
"Seller"), as
successor in interest to Morgan Stanley Mortgage Capital Inc., and
Morgan
Stanley Capital I Inc. (the "Purchaser").
Seller agrees to sell and Purchaser agrees to purchase certain
mortgage loans
listed on Exhibit 1 hereto (the "Mortgage Loans") as described
herein. Purchaser
will convey the Mortgage Loans to a trust (the "Trust") created
pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), to be
dated as of July 1, 2007, between Purchaser, as depositor, Wells
Fargo Bank,
National Association, as master servicer, LNR Partners, Inc., as
special
servicer ("Special Servicer"), LaSalle Bank National Association,
as trustee (in
such capacity, "Trustee") and custodian (in such capacity,
"Custodian"), and
Wells Fargo Bank, National Association as paying agent, certificate
registrar
and authenticating agent. In exchange for the Mortgage Loans, 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-HQ12
(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 term
"Master
Servicer" as used herein shall mean Wells Fargo Bank, National
Association, in
its capacity as a master servicer under the Pooling and Servicing
Agreement
unless otherwise specified.
The Class A-1, Class A-1A, Class A-2, Class A-2FL, Class A-3, Class
A-4, Class
A-5, Class A-M, Class A-MFL, Class A-J, Class A-JFL, Class B, Class
C and Class
D Certificates (the "Public Certificates") will be sold by
Purchaser to Morgan
Stanley & Co. Incorporated and Bear, Stearns & Co. Inc.
(the "Underwriters"),
pursuant to an Underwriting Agreement, between Purchaser and the
Underwriters,
dated July 26, 2007 (the "Underwriting Agreement"), and the Class
X, 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 T, Class R-I, Class R-II and Class
R-III
Certificates (the "Private Certificates") will be sold by Purchaser
to Morgan
Stanley & Co. Incorporated (the "Initial Purchaser") pursuant
to a Certificate
Purchase Agreement, between Purchaser and the Initial Purchaser,
dated July 26,
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 July 26,
2007 (together
with the Prospectus, the "Prospectus Supplement"), and the Initial
Purchaser
will offer the Private Certificates for sale in transactions exempt
from the
registration requirements of the Securities Act of 1933 pursuant to
a Private
Placement Memorandum dated July 26, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, Seller
and Purchaser
hereby agree as follows:
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1. AGREEMENT TO PURCHASE.
1.1 Seller agrees to sell, and 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 Purchaser pursuant to
the terms
hereof. The Cut-Off Date with respect to the Mortgage Loans is July
1, 2007. The
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 $1,958,564,352. The
sale of the
Mortgage Loans shall take place on July 31, 2007 or such other date
as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The
purchase
price to be paid by Purchaser for the Mortgage Loans shall equal
the amount set
forth as such purchase price in a letter dated as of the date
hereof, between
the parties to this Agreement and entered into in connection with
this Agreement
and the issuance of the Certificates, which purchase price excludes
accrued
interest and applicable deal expenses. The purchase price shall be
paid to
Seller by wire transfer in immediately available funds on the
Closing Date.
1.2 On the Closing Date, Purchaser will assign to 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 14), and Trustee shall succeed to such right, title and
interest in
and to the Mortgage Loans and Purchaser's rights under this
Agreement (to the
extent set forth in Section 14).
2. CONVEYANCE OF MORTGAGE LOANS.
2.1 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, Seller does hereby
transfer,
assign, set over and otherwise convey to Purchaser, without
recourse, except as
specifically provided herein, all the right, title and interest of
Seller, with
the understanding that a Servicing Rights Purchase and Sale
Agreement, dated
July 26, 2007, will be executed by Seller and Master Servicer, in
and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of the
Closing Date.
The Mortgage Loan Schedule, as it may be amended from time to time
on or prior
to the Closing Date, shall conform to the requirements of this
Agreement and the
Pooling and Servicing Agreement. In connection with such transfer
and
assignment, Seller shall deliver to or on behalf of Trustee, on
behalf of
Purchaser, on or prior to the Closing Date, the Mortgage Note (as
described in
clause 2.2.1 hereof) 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
Trustee,
Master Servicer and Special Servicer to empower Trustee, Master
Servicer and, in
the event of the failure or incapacity of Trustee and Master
Servicer, Special
Servicer, to submit for recording, at the expense of 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 Trustee). Seller
agrees to
reasonably cooperate with Trustee, Master Servicer and 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
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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
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. Custodian shall submit such documents for recording,
at Seller's
expense, after the periods set forth above, provided, however,
Custodian shall
not submit such assignments for recording if Seller produces
evidence that it
has sent any such assignment for recording and certifies that
Seller is awaiting
its return from the applicable recording office. In addition, not
later than the
30th day following the Closing Date, Seller shall deliver to or on
behalf of
Trustee each of the remaining documents or instruments specified in
Section 2.2
hereof (with such exceptions and additional time periods as are
permitted by
this Section 2) with respect to each Mortgage Loan (each, a
"Mortgage File").
(Seller acknowledges that the term "without recourse" does not
modify the duties
of Seller under Section 5 hereof.)
2.2 All Mortgage Files, or portions thereof, delivered prior to
the Closing
Date are to be held by or on behalf of Trustee in escrow on behalf
of 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:
2.2.1 The original Mortgage Note bearing all intervening
endorsements,
endorsed, by Allonge or on the original Mortgage Note, "Pay to the
order of
LaSalle Bank National Association, as Trustee for Morgan Stanley
Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-HQ12,
without
recourse, representation or warranty" or if the original Mortgage
Note is not
included therein, then a lost note affidavit, with a copy of the
Mortgage Note
attached thereto;
2.2.2 The original Mortgage, with evidence of recording
thereon, and, if
the Mortgage was executed pursuant to a power of attorney, a
certified true copy
of the power of attorney certified by the public recorder's office,
with
evidence of recording thereon (if recording is customary in the
jurisdiction in
which such power of attorney was executed), or certified by a title
insurance
company or escrow company to be a true copy thereof; provided that
if such
original Mortgage cannot be delivered with evidence of recording
thereon on or
prior to the 90th day following the Closing Date because of a delay
caused by
the public recording office where such original Mortgage has been
delivered for
recordation or because such original Mortgage has been lost, Seller
shall
deliver or cause to be delivered to 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
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;
2.2.3 The originals of all agreements modifying a Money
Term or other
material modification, consolidation and extension agreements, if
any, with
evidence of recording
4
thereon, 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 Seller together with (i) in the case of a delay caused
by the
public recording office, an Officer's Certificate of 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;
2.2.4 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-HQ12," provided, if the related Mortgage has been recorded in
the name of
Mortgage Electronic Registration Systems, Inc. ("MERS") or its
designee, no such
assignments will be required to be submitted for recording or
filing and
instead, Seller shall take all actions as are necessary to cause
Trustee to be
shown as the owner of the related Mortgage on the record of MERS
for purposes of
the system of recording transfers of beneficial ownership of
mortgages
maintained by MERS and shall deliver to Special Servicer evidence
confirming
that Trustee is shown as the owner on the record of MERS;
2.2.5 Originals of all intervening assignments of Mortgage
(except with
respect to any Mortgage that has been recorded in the name of MERS
or its
designees), 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 Seller, or in the case of an original blanket intervening
assignment of
Mortgage retained by Seller, a copy thereof certified by 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 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;
2.2.6 If the related Assignment of Leases is separate from
the Mortgage,
the original of such Assignment of Leases with evidence of
recording thereon or,
if such Assignment of Leases has not been returned on or prior to
the 90th day
following the Closing Date from the applicable public recording
office, a copy
of such Assignment of Leases certified by Seller to be a true and
complete copy
of the original Assignment of Leases submitted for recording,
together with (i)
an original of each assignment of such Assignment of Leases with
evidence of
recording thereon
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and showing a complete recorded chain of assignment from the named
assignee to
the holder of record, and if any such assignment of such Assignment
of Leases
has not been returned from the applicable public recording office,
a copy of
such assignment certified by Seller to be a true and complete copy
of the
original assignment submitted for recording, and (ii) an original
assignment of
such Assignment of Leases, in recordable form, 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-HQ12," which assignment may be effected in the related
Assignment of
Mortgage, provided, if the related Mortgage has been recorded in
the name of
MERS or its designee, no assignment of Assignment of Leases in
favor of Trustee
will be required to be recorded or delivered and instead, Seller
shall take all
actions as are necessary to cause Trustee to be shown as the owner
of the
related Mortgage on the record of MERS for purposes of the system
of recording
transfers of beneficial ownership of mortgages maintained by MERS
and shall
deliver to Special Servicer evidence confirming that Trustee is
shown as the
owner on the record of MERS;
2.2.7 The original or a copy of each guaranty, if any,
constituting
additional security for the repayment of such Mortgage Loan;
2.2.8 The original Title Insurance Policy, or in the event
such original
Title Insurance Policy has not been issued, an original binder or
actual title
commitment or a copy thereof 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 an original Title Insurance Policy to
follow
within 180 days of the Closing Date;
2.2.9 (A) Copies of UCC financing statements (together with
all
assignments thereof) and (B) UCC-2 or UCC-3 financing statements
assigning such
UCC financing statements to Trustee executed and delivered in
connection with
the Mortgage Loan, provided, if the related Mortgage has been
recorded in the
name of MERS or its designee, no such financing statements will be
required to
be recorded or delivered and instead, Seller shall take all actions
as are
necessary to cause Trustee to be shown as the owner of the related
Mortgage on
the record of MERS for purposes of the system of recording
transfers of
beneficial ownership of mortgages maintained by MERS and shall
deliver to
Special Servicer evidence confirming that Trustee is shown as the
owner on the
record of MERS;
2.2.10 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;
2.2.11 Copies of any loan agreements, lock-box agreements
and
intercreditor agreements (including, without limitation, any
Intercreditor
Agreement, any Non-Serviced Mortgage Loan Intercreditor Agreement
and any Loan
Pair Intercreditor Agreement, and a copy (that is, not the
original) of the
mortgage note evidencing the related B Note), if any, related to
any Mortgage
Loan;
2.2.12 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
6
delivered to Trustee on behalf of the Trust with a copy to be held
by Primary
Servicer (or 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 Primary Servicer (or Master Servicer) on
behalf of
Trustee, with a copy to be held by 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 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 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 Seller to assign the letter of credit
hereunder
including the right and power to draw on the letter of credit). In
the case of
clause (B) above, any letter of credit held by Primary Servicer (or
Master
Servicer) acknowledges that any letter of credit held by it shall
be held in its
capacity as agent of the Trust, and if Primary Servicer (or Master
Servicer)
sells its rights to service the applicable Mortgage Loan, Primary
Servicer (or
Master Servicer) has agreed to assign the applicable letter of
credit to the
Trust or at the direction of Special Servicer to such party as
Special Servicer
may instruct, in each case, at the expense of Primary Servicer (or
Master
Servicer). Primary Servicer (or Master Servicer) has agreed to
indemnify the
Trust for any loss caused by the ineffectiveness of such
assignment;
2.2.13 The original or a copy of the environmental indemnity
agreement,
if any, related to any Mortgage Loan;
2.2.14 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;
2.2.15 The original or a copy of any Environmental Insurance
Policy; and
2.2.16 Any affidavit and indemnification agreement.
2.2.17 With respect to the RREEF Portfolio Pari Passu Loan
and the
Deptford Mall Pari Passu Loan, a copy of the MSCI 2007-HQ11 Pooling
and
Servicing Agreement and with respect to the Beacon Seattle & DC
Portfolio Pari
Passu Loan, a copy of the MSCI 2007-IQ14 Pooling and Servicing
Agreement.
With respect to the RREEF Portfolio Pari Passu Loan, the Deptford
Mall Pari
Passu Loan and the Beacon Seattle & DC Portfolio Pari Passu
Loan, the preceding
document delivery requirements will be met by the delivery by the
Depositor of
copies of the documents specified above (other than the Mortgage
Notes and all
intervening endorsements) evidencing the RREEF
7
Portfolio Pari Passu Loan, the Deptford Mall Pari Passu Loan and
the Beacon
Seattle & DC Portfolio Pari Passu Loan, as applicable,
including a copy of the
related Pari Passu Mortgage.
The original of each letter of credit referred to in clause 2.2.12
above shall
be delivered to Primary Servicer, Master Servicer or Trustee (as
the case may
be) within 45 days of the Closing Date. In addition, a copy of any
ground lease
shall be delivered to Primary Servicer within 30 days of the
Closing Date.
"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.
2.3 The Assignments of Mortgage and assignment of Assignment of
Leases
referred to in Sections 2.2.4 and 2.2.6 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, 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
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 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 Seller to
Purchaser and
from Purchaser to Trustee on behalf of the Certificateholders.
2.4 If Seller cannot deliver, or cause to be delivered, as to any
Mortgage
Loan, any of the documents and/or instruments referred to in
Sections 2.2.2,
2.2.3, 2.2.5 or 2.2.6, with evidence of recording thereon, solely
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
Seller
delivers a photocopy thereof (certified by the appropriate county
recorder's
office to be a true and complete copy of the original thereof
submitted for
recording), to Trustee within such 90 day period, Seller shall then
deliver
within 180 days after the Closing Date the recorded document (or
within such
longer period after the Closing Date as Trustee may consent to,
which consent
shall not be unreasonably withheld so long as Seller is, as
certified in writing
to Trustee no less often than monthly, in good faith attempting to
obtain from
the appropriate county recorder's office such original or
photocopy).
2.5 Trustee, as assignee or transferee of 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
Seller.
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2.6 Within 45 days following the Closing Date, Seller shall
deliver, and
Purchaser, Trustee or the agents of either may submit or cause to
be submitted
for recordation at the expense of Seller, in the appropriate public
office for
real property records, each assignment referred to in clauses
2.2.4, 2.2.6(ii)
and 2.2.9(B) above (with recording information in blank if such
information is
not yet available). If any such document or instrument is lost or
returned
unrecorded or unfiled, as the case may be, because of a defect
therein, Seller
shall prepare a substitute therefor or cure such defect, and Seller
shall, at
its own expense (except in the case of a document or instrument
that is lost by
Trustee), record or file, as the case may be, and deliver such
document or
instrument in accordance with this Section 2.
2.7 As to each Mortgage Loan secured by a Mortgaged Property with
respect to
which the related Mortgagor has entered into a franchise agreement
and each
Mortgage Loan secured by a Mortgaged Property with respect to which
a letter of
credit is in place, Seller shall provide a notice on or prior to
the date that
is 30 days after the Closing Date to the franchisor or the issuing
financial
institution, as applicable, of the transfer of such Mortgage Loan
to the Trust
pursuant to the Pooling and Servicing Agreement, and inform such
parties that
any notices to the Mortgagor's lender pursuant to such franchise
agreement or
letter of credit should thereafter be forwarded to Master Servicer
and, with
respect to each franchise agreement, provide a franchise comfort
letter to the
franchisor on or prior to the date that is 30 days after the
Closing Date. After
the Closing Date, with respect to any letter of credit that has not
yet been
assigned to the Trust, upon the written request of Master Servicer
or the
applicable Primary Servicer, Seller will draw on such letter of
credit as
directed by Master Servicer or such Primary Servicer in such notice
to the
extent Seller has the right to do so.
2.8 Documents that are in the possession of 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 to Trustee shall be shipped by
Seller to or
at the direction of Master Servicer, on behalf of Purchaser, on or
prior to the
75th day after the Closing Date, in accordance with Section 3.1 of
the Primary
Servicing Agreement, if applicable.
2.9 The documents required to be delivered to Master Servicer (or
in the
alternative, Primary Servicer) shall include, to the extent
required to be (and
actually) delivered to 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
Borrower/sponsor and any guarantors, any letters of credit, any
intercreditor
agreement and any Environmental Insurance Policies. Notwithstanding
the
foregoing, Seller shall not be required to deliver any draft
documents, or any
attorney-client communications that are privileged communications
or constitute
legal or other due diligence analyses, or internal communications
of Seller or
its affiliates, or credit underwriting or other analyses or data.
Delivery of
any of the foregoing documents to Primary Servicer shall be deemed
a delivery to
Master Servicer and satisfy Seller's obligations under this
subparagraph. Each
of the foregoing
9
items may be delivered by Seller in electronic form, to the extent
such document
is available in such form and such form is reasonably acceptable to
Master
Servicer.
2.10 Upon the sale of the Mortgage Loans by Seller to 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 Purchaser
and its
assigns, and the ownership of all records and documents
constituting the
Servicing File with respect to the related Mortgage Loan prepared
by or that
come into the possession of Seller shall immediately vest in
Purchaser and its
assigns, and shall be delivered promptly by Seller to or on behalf
of either
Trustee or Master Servicer as set forth herein, subject to the
requirements of
the Primary Servicing Agreement. Seller's and Purchaser's records
shall reflect
the transfer of each Mortgage Loan from Seller to Purchaser and its
assigns as a
sale.
2.11 It is the express intent of the parties hereto that the
conveyance of the
Mortgage Loans and related property to Purchaser by 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
Seller to Purchaser to secure a debt or other obligation of 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 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:
2.11.1 this Agreement shall be deemed to be a security
agreement; and
2.11.2 the conveyance provided for in this Section 2 shall
be deemed to
be a grant by Seller to Purchaser of a security interest in all of
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.
10
2.12 The possession by 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, Section 9-313 thereof) as in
force in the
relevant jurisdiction. Notwithstanding the foregoing, Seller makes
no
representation or warranty as to the perfection of any such
security interest.
2.13 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,
Purchaser or its designee, as applicable, for the purpose of
perfecting such
security interest under applicable law.
2.14 Seller hereby agrees to provide Purchaser with prompt notice
of any
information it receives which indicates that the transfer of each
Mortgage Loan
from Seller to Purchaser may not be treated as a sale. Seller
shall, to the
extent consistent with this Agreement and upon request by or on
behalf of
Purchaser, 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, Seller
hereby
authorizes Master Servicer, Trustee and Custodian to 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,
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.
2.15 Notwithstanding anything to the contrary contained herein,
and subject to
Section 2.1, Purchaser shall not be required to purchase any
Mortgage Loan as to
which any Mortgage Note or lost note affidavit and indemnity
(endorsed as
described in clause 2.2.1) required to be delivered to or on behalf
of Trustee
or 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
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
Purchaser's or its
successors' and assigns' rights in respect thereof pursuant to
Section 5.
3. EXAMINATION OF MORTGAGE FILES AND DUE DILIGENCE REVIEW.
3.1 Seller shall (i) deliver to Purchaser on or before the
Closing Date a
diskette acceptable to Purchaser that contains such information
about the
Mortgage Loans as may be reasonably requested by Purchaser, (ii)
deliver to
Purchaser investor files (collectively the "Collateral
Information") with
respect to the assets proposed to be included in the Mortgage Pool
and made
available at Purchaser's headquarters in New York, and (iii)
otherwise cooperate
fully with 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 Purchaser has conducted
or has
failed to conduct any partial or complete examination of the
11
credit files, underwriting documentation or Mortgage Files for the
Mortgage
Loans shall not affect the right of Purchaser or Trustee to cause
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 hereof.
3.2 On or prior to the Closing Date, Seller shall allow
representatives of any
of Purchaser, each Underwriter, the Initial Purchaser, Trustee,
Special Servicer
and each Rating Agency to examine and audit all books, records and
files
pertaining to the Mortgage Loans, Seller's underwriting procedures
and 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 Seller during normal business hours and shall not be conducted
in a manner
that is disruptive to Seller's normal business operations upon
reasonable prior
advance notice. In the course of such examinations and audits,
Seller will make
available to such representatives of any of Purchaser, each
Underwriter, each
Initial Purchaser, Trustee, 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 Seller shall cooperate
fully with any
such examination and audit in all material respects. On or prior to
the Closing
Date, Seller shall provide Purchaser with all material information
regarding
Seller's financial condition and access to knowledgeable financial
or accounting
officers for the purpose of answering questions with respect to
Seller's
financial condition, financial statements as provided to Purchaser
or other
developments affecting Seller's ability to consummate the
transactions
contemplated hereby or otherwise affecting Seller in any material
respect.
Within 45 days after the Closing Date, Seller shall provide Master
Servicer or
Primary Servicer, if applicable, with any additional information
identified by
Master Servicer or Primary Servicer, if applicable, as necessary to
complete the
CMSA Property File, to the extent that such information is
available.
3.3 Purchaser may exercise any of its rights hereunder through
one or more
designees or agents, provided Purchaser has provided Seller with
prior notice of
the identity of such designee or agent.
3.4 Purchaser shall keep confidential any information regarding
Seller and the
Mortgage Loans that has been delivered into 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
Purchaser is required by law or court order to disclose such
information. If
Purchaser is required to disclose in the Memorandum or the
Prospectus Supplement
confidential information regarding Seller as described in the
preceding
sentence, Purchaser shall provide to Seller a copy of the proposed
form of such
disclosure prior to making such disclosure and Seller shall
promptly, and in any
event within two Business Days, notify Purchaser of any
inaccuracies therein, in
which case Purchaser shall modify such form in a manner that
corrects such
inaccuracies. If Purchaser is required by law or court order to
disclose
confidential information regarding Seller as described in the
second preceding
sentence, Purchaser shall notify Seller and cooperate in 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, Purchaser is compelled as a
matter of law to
disclose such information, Purchaser
12
shall, prior to making such disclosure, advise and consult with
Seller and its
counsel as to such disclosure and the nature and wording of such
disclosure and
Purchaser shall use reasonable efforts to obtain confidential
treatment
therefor. Notwithstanding the foregoing, if reasonably advised by
counsel that
Purchaser is required by a regulatory agency or court order to make
such
disclosure immediately, then Purchaser shall be permitted to make
such
disclosure without prior review by Seller.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER.
4.1 To induce Purchaser to enter into this Agreement, Seller
hereby makes for
the benefit of Purchaser and its assigns with respect to each
Mortgage Loan
(subject to the last paragraph of this Section 4.1) 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
thereto, and hereby
further represents and warrants to Purchaser as of the date hereof
that:
4.1.1 Seller is duly organized and is validly existing as a
limited
liability company in good standing under the laws of the State of
New York.
Seller has the requisite power and authority and legal right to own
the Mortgage
Loans and to transfer and convey the Mortgage Loans to 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.
4.1.2 This Agreement has been duly and validly authorized,
executed and
delivered by Seller, and assuming the due authorization, execution
and delivery
hereof by Purchaser, this Agreement constitutes the valid, legal
and binding
agreement of Seller, enforceable in accordance with its terms,
except as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency,
fraudulent transfer, reorganization, receivership, conservatorship
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.
4.1.3 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 Seller with this Agreement, or the consummation by
Seller of any
transaction contemplated hereby, other than (A) such qualifications
as may be
required under state securities or blue sky laws, (B) the filing or
recording of
financing statements, instruments of assignment and other similar
documents
necessary in connection with Seller's sale of the Mortgage Loans to
Purchaser,
(C) such consents, approvals, authorizations, qualifications,
registrations,
filings or notices as have been obtained and (D) where the lack of
such consent,
approval, authorization, qualification, registration, filing or
notice would not
have a material adverse effect on the performance by Seller under
this
Agreement.
13
4.1.4 Neither the transfer of the Mortgage Loans to
Purchaser, nor the
execution, delivery or performance of this Agreement by 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
Seller's articles
of organization or by-laws, (B) any term or provision of any
material agreement,
contract, instrument or indenture to which 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 4.1.3, any law, rule, regulation, order,
judgment,
writ, injunction or decree of any court or governmental authority
having
jurisdiction over 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 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
Seller, or in
any material impairment of the right or ability of Seller to carry
on its
business substantially as now conducted.
4.1.5 There are no actions or proceedings against, or
investigations of,
Seller pending or, to Seller's knowledge, threatened in writing
against 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 Purchaser or the execution or delivery by, or
enforceability against, Seller of this Agreement or have an effect
on the
financial condition of Seller that would materially and adversely
affect the
ability of Seller to perform its obligations under this Agreement.
4.1.6 On the Closing Date, the sale of the Mortgage Loans
pursuant to
this Agreement will effect a transfer by Seller of all of its
right, title and
interest in and to the Mortgage Loans to Purchaser.
4.1.7 To Seller's knowledge, the MSMCH Mortgage Loan
Information (as
defined in that certain indemnification agreement, dated July 26,
2007, between
Seller, Purchaser, the Underwriters and the Initial Purchaser (the
"Indemnification Agreement")) relating to the Mortgage Loans 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 (when read together with
the Final
Prospectus Supplement, in the case of Public Certificates, or when
read together
with the Memorandum, in the case of the Private Certificates).
Notwithstanding
anything contained herein to the contrary, this subparagraph 4.1.7
shall run
exclusively to the benefit of Purchaser and no other party.
To induce Purchaser to enter into this Agreement, Seller hereby
covenants that
the foregoing representations and warranties and those set forth on
Exhibit 2
hereto, subject to the exceptions set forth in Schedule A to
Exhibit 2, 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.
14
4.1.8 Seller has complied with the disclosure requirements
of Regulation
AB that arise from its role as "seller" and "sponsor" in connection
with the
issuance of the Certificates.
4.1.9 Seller hereby agrees to deliver to Purchaser (or with
respect to
any Serviced Companion Mortgage Loan that is deposited into an
Other
Securitization, the depositor in such Other Securitization) and
Trustee any
disclosure information relating to any event specifically related
to Seller as
required to be reported on Form 8-K, Form 10-D or Form 10-K by the
Trust (in
formatting reasonably appropriate for inclusion in such form),
including,
without limitation, the disclosure required under Items 1117 and
1119 of
Regulation AB and Item 1.03 to Form 8-K. Seller shall use its best
efforts to
deliver proposed disclosure language relating to any event
described under Items
1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to Trustee
and
Purchaser within one Business Day and in any event no later than
two Business
Days of Seller becoming aware of such event and shall provide
disclosure
relating to any other event required to be disclosed on Form 8-K,
Form 10-D or
Form 10-K within two Business Days following Purchaser's request
for such
disclosure language. The obligation of Seller to provide the
above-referenced
disclosure materials will terminate upon notice or other written
confirmation
from Purchaser or Trustee that Trustee has filed a Form 15 with
respect to the
Trust as to that fiscal year in accordance with Section 13.8 of the
Pooling and
Servicing Agreement or the reporting requirements with respect to
the Trust
under the Securities Exchange Act of 1934, as amended, have
otherwise been
automatically suspended. Seller hereby acknowledges that the
information to be
provided by it pursuant to this Section will be used in the
preparation of
reports meeting the reporting requirements of the Trust under
Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Each of the representations, warranties and covenants made by
Seller pursuant to
this Section 4.1 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.
4.2 To induce Seller to enter into this Agreement, Purchaser
hereby represents
and warrants to Seller as of the date hereof:
4.2.1 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.
4.2.2 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. 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 Seller, constitutes
the valid and
binding obligation of 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.
15
4.2.3 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 Purchaser with this Agreement, or the consummation by
Purchaser of
any transaction contemplated hereby that has not been obtained or
made by
Purchaser.
4.2.4 Neither the purchase of the Mortgage Loans nor the
execution,
delivery and performance of this Agreement by Purchaser will
violate 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 Purchaser is a party or that may be applicable
to Purchaser
or its assets.
4.2.5 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 Purchaser or its assets, which violation could
materially and
adversely affect the condition (financial or otherwise) or the
operation of
Purchaser or its assets or could materially and adversely affect
its ability to
perform its obligations and duties hereunder.
4.2.6 There are no actions or proceedings against, or
investigations of,
Purchaser pending or, to Purchaser's knowledge, threatened against
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
Purchaser that would materially and adversely affect the ability of
Purchaser to
perform its obligation under this Agreement.
4.2.7 Purchaser has not dealt with any broker, investment
banker, agent
or other person, other than 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 Seller to enter into this Agreement, 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 Purchaser
pursuant to this
Section 4.2 shall survive the purchase of the Mortgage Loans.
5. REMEDIES UPON BREACH OF REPRESENTATIONS AND WARRANTIES MADE
BY SELLER.
5.1 It is hereby acknowledged that Seller shall make for the
benefit of
Trustee on behalf of the holders of the Certificates, whether
directly or by way
of Purchaser's assignment of its rights hereunder to Trustee, the
representations and warranties set forth on Exhibit 2 hereto (each
as of the
date hereof unless otherwise specified).
16
5.2 It is hereby further acknowledged that if any document
required to be
delivered to 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 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
parties; provided that any breach of the representation and
warranty contained
in paragraph 42 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, Master Servicer shall, and Special Servicer may, request
that Seller,
not later than 90 days from 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 Seller is diligently attempting to effect such correction or
cure, as
certified by Seller in an Officer's Certificate delivered to
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, then a Specially Serviced Mortgage Loan and
a Servicing
Transfer Event has occurred as a result of a monetary default or as
described in
clause (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 Seller by 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 Seller
pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor
possession of such certification or schedule by Seller shall, in
and of itself,
constitute delivery of notice of any Material Document Defect or
knowledge or
awareness by Seller of any Material Document Defect listed therein.
5.3 Seller hereby covenants and agrees that, if any such Material
Document
Defect or Material Breach cannot be corrected or cured in all
material respects
within the above cure periods, Seller shall, on or before the
termination of
such cure periods, either (i) repurchase the affected Mortgage Loan
or REO
Mortgage Loan from Purchaser or its assignee at the Purchase Price
as defined in
the Pooling and Servicing Agreement, or (ii) if within the
three-month period
commencing on the Closing Date (or within the two-year period
commencing on the
Closing Date if the related Mortgage Loan is a "defective
obligation" within the
meaning of Section
17
860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G-2(f)), 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 or the previous paragraph, repurchase or
substitution must
occur within 90 days from the date Seller was notified of the
breach or defect.
Seller agrees that any substitution shall be completed in
accordance with the
terms and conditions of the Pooling and Servicing Agreement.
5.4 If (x) a Mortgage Loan is to be repurchased or replaced as
contemplated
above (a "Defective Mortgage Loan"), (y) such Defective Mortgage
Loan is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
("Crossed Mortgage Loans") and (z) the applicable document defect
or breach does
not constitute a Material Document Defect or Material Breach, as
the case may
be, as to such Crossed 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 Crossed Mortgage Loan for purposes of the above
provisions, and
Seller shall be obligated to repurchase or replace each such
Crossed Mortgage
Loan in accordance with the provisions above, unless, in the case
of such breach
or document defect, (A) Seller provides a Nondisqualification
Opinion to Trustee
at the expense of Seller if Trustee acting at the direction of the
Controlling
Class determines that it would be usual and customary in accordance
with
industry practice to obtain a Nondisqualification Opinion and (B)
both of the
following conditions would be satisfied if Seller were to
repurchase or replace
only those Mortgage Loans as to which a Material Breach or Material
Document
Defect had occurred without regard to this paragraph (the "Affected
Loan(s)"):
(i) 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 is not less than the greater of (A) the
debt service
coverage ratio for all such Crossed Mortgage Loans (including the
Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to
the Final
Prospectus Supplement and (B) 1.25x, and (ii) the loan-to-value
ratio for all
such Crossed Mortgage Loans (excluding the Affected Loan(s)) is not
greater than
the lesser of (A) 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 (B) 75%. The
determination
of Master Servicer as to whether the conditions set forth above
have been
satisfied shall be conclusive and binding in the absence of
manifest error.
Master Servicer will be entitled to cause to be delivered, or
direct Seller to
(in which case Seller shall) cause to be delivered to Master
Servicer: (A) an
Appraisal of any or all of the related Mortgaged Properties for
purposes of
determining whether the condition set forth in clause (ii) above
has been
satisfied, in each case at the expense of Seller if the scope and
cost of the
Appraisal is approved by Seller (such approval not to be
unreasonably withheld)
and (B) an opinion of counsel that not requiring the repurchase of
each such
Crossed Mortgage Loan will not result in an Adverse REMIC Event.
5.5 With respect to any Defective Mortgage Loan, to the extent
that Seller is
required to repurchase or substitute for such Defective Mortgage
Loan (each, a
"Repurchased Loan") in the manner prescribed above while Trustee
(as assignee of
Purchaser) continues to hold any Crossed Mortgage Loan that is
cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized
Loan") with such Repurchased Loan, Seller and Purchaser hereby
agree to modify,
prior to such
18
repurchase or substitution, the related Mortgage Loan documents in
a manner such
that such affected Repurchased Loan, on the one hand, and any
related
Cross-Collateralized Loans held by Trustee, on the other, would no
longer be
cross-defaulted or cross-collateralized with one another; provided
that Seller
shall have furnished Trustee, at the expense of Seller, a
nondisqualification
opinion that such modification shall not cause an Adverse REMIC
Event; provided,
further, that if such nondisqualification opinion cannot be
furnished, Seller
and Purchaser agree that such repurchase or substitution of only
the Repurchased
Loan, notwithstanding anything to the contrary herein, shall not be
permitted
and Seller shall repurchase or substitute for the Repurchased Loan
and all
related Cross-Collateralized Loans. Any reserve or other cash
collateral or
letters of credit securing the Cross-Collateralized Mortgage Loans
shall be
allocated between such Mortgage Loans in accordance with the
Mortgage Loan
documents, or otherwise on a pro rata basis based upon their
outstanding
Principal Balances. 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 to Exhibit 2 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.
5.6 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: (a) the absence from the Mortgage
File of the
original signed Mortgage Note, unless the Mortgage File contains a
signed lost
note affidavit and indemnity that appears to be regular on its
face; (b) the
absence from the Mortgage File of the original signed Mortgage that
appears to
be regular on its face, unless there is included in the Mortgage
File a
certified copy of the Mortgage by the local authority with which
the Mortgage
was recorded; or (c) the absence from the Mortgage File of the item
specified in
paragraph 2.2.8. If any of the foregoing Material Document Defects
is discovered
by the Custodian (or Trustee if there is no Custodian), Trustee (or
as set forth
in Section 2.3(a) of the Pooling and Servicing Agreement, 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
Seller for the cure of the Material Document Defect or repurchase
or replacement
of the related Mortgage Loan.
5.7 If 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 Mortgage Loan from Purchaser or its
assignee or (iii) to
replace such Mortgage Loan with a Qualifying Substitute Mortgage
Loan, each in
accordance with this Agreement, then provided that (i) the period
of time
provided for Seller to correct, repurchase or cure has expired and
(ii) the
Mortgage Loan is then in default and is then a Specially Serviced
Mortgage Loan,
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 Sections 9.5, 9.12, 9.15 and 9.36, as
applicable, of
the Pooling and Servicing Agreement, while pursuing the repurchase
claim. Seller
acknowledges and agrees that any modification of the Mortgage Loan
pursuant to a
work-out shall not constitute a defense to any repurchase claim nor
shall such
modification and work-out change the Purchase Price due from 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
19
than Seller shall be without (i) recourse of any kind (either
express or
implied) by such Person against Seller and (ii) representation or
warranty of
any kind (either express or implied) by Seller to or for the
benefit of such
Person.
5.8 Seller shall have the right to purchase certain of the
Mortgage Loans or
REO Properties, as applicable, in accordance with Section 9.36 of
the Pooling
and Servicing Agreement.
5.9 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
Seller for repurchase of the REO Mortgage Loan or REO Property. In
such an
event, Master Servicer shall notify Seller of the discovery of the
Material
Document Defect or Material Breach and Seller shall have 90 days to
correct or
cure such Material Document Defect or Material Breach or purchase
the REO
Property at the Purchase Price. After a final liquidation of the
Mortgage Loan
or REO Mortgage Loan, if a court of competent jurisdiction issues a
final order
that Seller is or was obligated to repurchase the related Mortgage
Loan or REO
Mortgage Loan after the expiration of any applicable appeal period
(a "Final
Judicial Determination") or Seller otherwise accepts liability,
then, but in no
event later than the Termination of the Trust pursuant to Section
9.30 of the
Pooling and Servicing Agreement, Seller will be obligated to pay to
the Trust
the difference between any Liquidation Proceeds received upon such
liquidation
in accordance with the Pooling and Servicing Agreement (including
those arising
from any sale to Seller) and the Purchase Price.
5.10 Notwithstanding anything to the contrary contained herein, in
connection
with any sale or other liquidation of a Mortgage Loan or REO
Property as
described in this Section 5, Special Servicer shall not receive a
Liquidation
Fee from Seller (but may collect such Liquidation Fee from the
related
Liquidation Proceeds as otherwise provided herein) unless Seller is
required to
repurchase such Mortgage Loan or REO Property and such Mortgage
Loan or REO
Property is repurchased after the date that is 90 (or if the Seller
is
diligently attempting to cure such Material Breach or Material
Document Defect,
180) days or more after the Seller receives notice of the breach or
defect
causing the repurchase; provided, however, that in the event Seller
is obligated
to repurchase the Mortgage Loan or REO Mortgaged Property after a
final
liquidation of such Mortgage Loan or REO Property pursuant to the
immediately
preceding paragraph, an amount equal to any Liquidation Fee
(calculated on the
basis of Liquidation Proceeds) payable to Special Servicer shall be
included in
the definition of "Purchase Price" in respect of such Mortgage Loan
or REO
Mortgaged Property. Except as expressly set forth above, no
Liquidation Fee
shall be payable in connection with a repurchase of a Mortgage Loan
by Seller.
5.11 The obligations of Seller set forth in this Section 5 to cure
a Material
Document Defect or a Material Breach or repurchase or replace a
defective
Mortgage Loan constitute the sole remedies of Purchaser or its
assignees with
respect to a Material Document Defect or Material Breach in respect
of an
outstanding Mortgage Loan; provided, that this limitation shall not
in any way
limit Purchaser's rights or remedies upon breach of any other
representation or
warranty or covenant by Seller set forth in this Agreement (other
than those set
forth in Exhibit 2).
5.12 Notwithstanding the foregoing, in the event that there is a
breach of the
representations and warranties set forth in paragraph 39 of Exhibit
2 hereto
because the underlying loan documents do not provide for the
payment by the
Mortgagor of reasonable costs and expenses
20
associated with the defeasance or assumption of a Mortgage Loan,
and the related
Mortgagor's payments made for the reasonable costs and expenses
associated with
the defeasance or assumption of a Mortgage Loan are insufficient
and cause the
Trust to incur an Additional Trust Expense in an amount equal to
such reasonable
costs and expenses not paid by such Mortgagor, Seller hereby
covenants and
agrees to reimburse the Trust within 90 days of the receipt of
notice of such
breach in an amount sufficient to avoid such Additional Trust
Expense. The
parties hereto acknowledge that such reimbursement shall be
Seller's sole
obligation with respect to the breach discussed in the previous
sentence.
5.13 Notwithstanding the foregoing, Seller has retained the right
to designate
and establish the successor borrower and to purchase or cause the
purchase on
behalf of the related borrower of the related defeasance collateral
("MSMCH
Defeasance Rights and Obligations"). In the event the Master
Servicer receives
notice of a defeasance request with respect to a Mortgage Loan
subject to
defeasance, the Pooling and Servicing Agreement provides that the
Master
Servicer shall provide upon receipt of such notice, written notice
of such
defeasance request to Seller or its assignee. Until such time as
Seller provides
written notice to the contrary, notice of a defeasance of a
Mortgage Loan with
MSMCH Defeasance Rights and Obligations shall be delivered to MSMCH
pursuant to
the notice provisions of the Pooling and Servicing Agreement.
5.14 The Pooling and Servicing Agreement shall provide that
Trustee (or Master
Servicer or Special Servicer on its behalf) shall give written
notice promptly
(but in any event within three Business Days) to Seller of its
discovery of any
Material Document Defect or Material Breach and prompt written
notice to Seller
in the event that any Mortgage Loan becomes a Specially Serviced
Mortgage Loan
(as defined in the Pooling and Servicing Agreement).
5.15 If Seller repurchases any Mortgage Loan pursuant to this
Section 5,
Purchaser or its assignee, following receipt by Trustee of the
Purchase Price
therefor, promptly shall deliver or cause to be delivered to Seller
all Mortgage
Loan documents with respect to such Mortgage Loan, and each
document that
constitutes a part of the Mortgage File that was endorsed or
assigned to Trustee
shall be endorsed and assigned to Seller in the same manner such
that Seller
shall be vested with legal and beneficial title to such Mortgage
Loan, in each
case without recourse, including any property acquired in respect
of such
Mortgage Loan or proceeds of any insurance policies with respect
thereto.
6. CLOSING.
6.1 The closing of the sale of the Mortgage Loans shall be held
at the offices
of Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022
at 9:00 a.m., New
York time, on the Closing Date. The closing shall be subject to
each of the
following conditions:
6.1.1 All of the representations and warranties of Seller
and Purchaser
specified in Section 4 hereof (including, without limitation, the
representations and warranties set forth on Exhibit 2 hereto) shall
be true and
correct as of the Closing Date, provided that any representations
and warranties
made as of a specified date shall be true and correct as of such
specified date
(to the extent of the standard, if any, set forth in each
representation and
warranty).
21
6.1.2 All Closing Documents specified in Section 7 hereof,
in such forms
as are agreed upon and reasonably acceptable to Seller or
Purchaser, as
applicable, shall be duly executed and delivered by all signatories
as required
pursuant to the respective terms thereof.
6.1.3 Seller shall have delivered and released to Purchaser
or its
designee all documents required to be delivered to Purchaser as of
the Closing
Date pursuant to Section 2 hereof.
6.1.4 The result of the examination and audit performed by
Purchaser and
its affiliates pursuant to Section 3 hereof shall be satisfactory
to Purchaser
and its affiliates in their sole determination and the parties
shall have agreed
to the form and contents of the MSMCH Mortgage Loan Information to
be disclosed
in the Memorandum and the Prospectus Supplement.
6.1.5 All other terms and conditions of this Agreement
required to be
complied with on or before the Closing Date shall have been
complied with, and
Seller and Purchaser 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.
6.1.6 Seller shall have paid all fees and expenses payable
by it to
Purchaser pursuant to Section 8 hereof.
6.1.7 The Certificates to be so rated shall have been
assigned ratings
by each Rating Agency no lower than the ratings specified for each
such Class in
the Memorandum and the Prospectus Supplement.
6.1.8 No Underwriter shall have terminated the Underwriting
Agreement
and the Initial Purchaser shall not have terminated the Certificate
Purchase
Agreement, and neither the Underwriters nor the Initial Purchaser
shall have
suspended, delayed or otherwise cancelled the Closing Date.
6.1.9 Seller shall have received the purchase price for the
Mortgage
Loans pursuant to Section 1 hereof.
6.2 Each party agrees to use its best efforts to perform its
respective
obligations hereunder in a manner that will enable Purchaser to
purchase the
Mortgage Loans on the Closing Date.
7. CLOSING DOCUMENTS. The Closing Documents shall consist of the
following:
7.1 This Agreement duly executed by Purchaser and Seller.
7.2 A certificate of Seller, executed by a duly authorized
officer of Seller
and dated the Closing Date, and upon which Purchaser and its
successors and
assigns may rely, to the effect that: (i) the representations and
warranties of
Seller in this Agreement are true and correct in all material
respects on and as
of the Closing Date with the same force and 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 as of such specified date; and (ii)
Seller has
complied with all agreements and satisfied all conditions on its
part to be
performed or satisfied on or prior to the Closing Date.
22
7.3 True, complete and correct copies of Seller's articles of
organization and
by-laws or other organizational documents.
7.4 A certificate of existence for Seller from the Secretary of
State of New
York dated not earlier than 30 days prior to the Closing Date.
7.5 A certificate of the Secretary or Assistant Secretary of
Seller, dated the
Closing Date, and upon which Purchaser may rely, to the effect that
each
individual who, as an officer or representative of 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.
7.6 An opinion of counsel (which, other than as to the opinion
described in
paragraph 7.6.6 below, may be in-house counsel) to Seller, dated
the Closing
Date, substantially to the effect of the following (with such
changes and
modifications as Purchaser may approve and subject to such
counsel's reasonable
qualifications):
7.6.1 Seller is validly existing under New York law and has
full
corporate or organizational power and authority to enter into and
perform its
obligations under this Agreement.
7.6.2 This Agreement has been duly authorized, executed and
delivered by
Seller.
7.6.3 No consent, approval, authorization or order of any
federal court
or governmental agency or body is required for the consummation by
Seller of the
transactions contemplated by the terms of this Agreement except any
approvals as
have been obtained.
7.6.4 Neither the execution, delivery or performance of
this Agreement
by Seller, nor the consummation by Seller of any of the
transactions
contemplated by the terms of this Agreement (A) conflicts with or
results in a
breach or violation of, or constitutes a default under, the
organizational
documents of Seller, (B) to the knowledge of such counsel,
constitutes a default
under any term or provision of any material agreement, contract,
instrument or
indenture, to which 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) conflicts with or results in a breach or
violation of any law,
rule, regulation, order, judgment, writ, injunction or decree of
any court or
governmental authority having jurisdiction over 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 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 Seller, or in any material impairment of
the right or
ability of Seller to carry on its business substantially as now
conducted.
23
7.6.5 To his or her knowledge, there are no legal or
governmental
actions, investigations or proceedings pending to which Seller is a
party, or
threatened against Seller, (a) asserting the invalidity of this
Agreement or (b)
which materially and adversely affect the performance by Seller of
its
obligations under, or the validity or enforceability of, this
Agreement.
7.6.6 This Agreement is a valid, legal and binding
agreement of Seller,
enforceable against Seller in accordance with its terms, except as
such
enforcement may be limited by (1) laws relating to bankruptcy,
insolvency,
fraudulent transfer, reorganization, receivership, conservatorship
or
moratorium, (2) other laws relating to or affecting the rights of
creditors
generally, (3) general equity principles (regardless of whether
such enforcement
is considered in a proceeding in equity or at law) or (4) 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.
Such opinion may express its reliance as to factual matters on,
among other
things specified in such opinion, the representations and
warranties made by,
and on certificates or other documents furnished by officers of,
the parties to
this Agreement.
In rendering the opinions expressed above, such counsel may limit
such opinions
to matters governed by the federal laws of the United States and
the corporate
laws of the State of Delaware and the State of New York, as
applicable.
7.7 A "10b-5" opinion of counsel addressed to Purchaser and the
Underwriters,
in form reasonably acceptable to Purchaser and the Underwriters, as
to the
disclosure provided by Seller to Purchaser in connection with the
Certificates.
7.8 An opinion of counsel addressed to Purchaser and the
Underwriters, in form
reasonably acceptable to Purchaser and the Underwriters, that such
disclosure
complies as to form with the applicable requirements of Regulation
AB with
respect to Seller's role as Sponsor (as such term is defined in
Regulation AB)
in connection with the Certificates. Such other opinions of counsel
as any
Rating Agency may request in connection with the sale of the
Mortgage Loans by
Seller to Purchaser or Seller's execution and delivery of, or
performance under,
this Agreement.
7.9 A letter from Deloitte & Touche, certified public
accountants, dated the
date hereof, to the effect that they have performed certain
specified procedures
as a result of which they determined that certain information of an
accounting,
financial or statistical nature set forth in the Memorandum and the
Prospectus
Supplement agrees with the records of Seller.
7.10 Such further certificates, opinions and documents as
Purchaser may
reasonably request.
7.11 An officer's certificate of Purchaser, dated as of the
Closing Date, with
the resolutions of Purchaser authorizing the transactions described
herein
attached thereto, together with certified copies of the charter,
by-laws and
certificate of good standing of Purchaser dated not earlier than 30
days prior
to the Closing Date.
24
7.12 Such other certificates of Purchaser's officers or others and
such other
documents to evidence fulfillment of the conditions set forth in
this Agreement
as Seller or its counsel may reasonably request.
7.13 An executed Bill of Sale in the form attached hereto as
Exhibit 3.
8. COSTS. Seller shall pay Purchaser the costs and expenses as
agreed upon by
Seller and Purchaser in a separate Letter of Understanding entered
into in
connection with this Agreement and the issuance of the
Certificates.
9. NOTICES. All communications provided for or permitted
hereunder shall be
in writing and shall be deemed to have been duly given if (a)
personally
delivered, (b) mailed by registered or certified mail, postage
prepaid and
received by the addressee, (c) sent by express courier delivery
service and
received by the addressee, or (d) transmitted by telex or facsimile
transmission
(or any other type of electronic transmission agreed upon by the
parties) and
confirmed by a writing delivered by any of the means described in
(a), (b) or
(c), if (i) to Purchaser, addressed to Morgan Stanley Capital I
Inc., 1585
Broadway, New York, New York 10036, Attention: Warren Friend (or
such other
address as may hereafter be furnished in writing by Purchaser), or
if (ii) to
Seller, addressed to Seller at Morgan Stanley Mortgage Capital
Holdings LLC,
1585 Broadway, New York, New York 10036, Attention: Cynthia Eckes
(or to such
other address as Seller may designate in writing).
10. SEVERABILITY OF PROVISIONS. Any part, provision,
representation, warranty
or covenant of this Agreement that is prohibited or that is held to
be void or
unenforceable shall be ineffective to the extent of such
prohibition or
unenforceability without invalidating the remaining provisions
hereof. Any part,
provision, representation, warranty or covenant of this Agreement
that is
prohibited or unenforceable or is held to be void or unenforceable
in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such
provision in any
other jurisdiction. To the extent permitted by applicable law, the
parties
hereto waive any provision of law that prohibits or renders void or
unenforceable any provision hereof.
11. FURTHER ASSURANCES. Seller and Purchaser each agree to
execute and deliver
such instruments and take such actions as the other may, from time
to time,
reasonably request in order to effectuate the purpose and to carry
out the terms
of this Agreement and the Pooling and Servicing Agreement.
12. SURVIVAL. Each party hereto agrees that the representations,
warranties
and agreements made by it herein and in any certificate or other
instrument
delivered pursuant hereto shall be deemed to be relied upon by the
other party,
notwithstanding any investigation heretofore or hereafter made by
the other
party or on its behalf, and that the representations, warranties
and agreements
made by such other party herein or in any such certificate or other
25
instrument shall survive the delivery of and payment for the
Mortgage Loans and
shall continue in full force and effect, notwithstanding any
restrictive or
qualified endorsement on the Mortgage Notes and notwithstanding
subsequent
termination of this Agreement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW
YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE
NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
14. BENEFITS OF MORTGAGE LOAN PURCHASE AGREEMENT. This Agreement
shall inure
to the benefit of and shall be binding upon Seller, Purchaser and
their
respective successors, legal representatives, and permitted
assigns, and nothing
expressed or mentioned in this Agreement is intended or shall be
construed to
give any other person any legal or equitable right, remedy or claim
under or in
respect of this Agreement, or any provisions herein contained, this
Agreement
and all conditions and provisions hereof being intended to be and
being for the
sole and exclusive benefit of such persons and for the benefit of
no other
person except that the rights and obligations of Purchaser pursuant
to Sections
2, 4.1 (other than clause 4.1.7), 5, 9, 10, 11, 12 and 13 hereof
may be assigned
to Trustee as may be required to effect the purposes of the Pooling
and
Servicing Agreement and, upon such assignment, Trustee shall
succeed to the
rights and obligations hereunder of Purchaser. No owner of a
Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a
successor or
permitted assigns because of such ownership.
15. MISCELLANEOUS. This Agreement may be executed in two or more
counterparts,
each of which when so executed and delivered shall be an original,
but all of
which together shall constitute one and the same instrument.
Neither this
Agreement nor any term hereof may be changed, waived, discharged or
terminated
orally, but only by an instrument in writing signed by the party
against whom
enforcement of the change, waiver, discharge or termination is
sought. The
headings in this Agreement are for purposes of reference only and
shall not
limit or otherwise affect the meaning hereof. The rights and
obligations of
Seller under this Agreement shall not be assigned by Seller without
the prior
written consent of Purchaser, except that any person into which
Seller may be
merged or consolidated, or any corporation resulting from any
merger, conversion
or consolidation to which Seller is a party, or any person
succeeding to the
entire business of Seller shall be the successor to Seller
hereunder.
16. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and
understanding between the parties hereto with respect to the
subject matter
hereof (other than the Letter of Understanding (solely with respect
to those
portions of this Agreement that are not assigned to Trustee), the
Indemnification Agreement and the Pooling and Servicing Agreement),
and
supersedes all prior and contemporaneous agreements,
understandings, inducements
and conditions, express or implied, oral or written, of any nature
whatsoever
with respect to the
26
subject matter hereof. The express terms hereof control and
supersede any course
of performance or usage of the trade inconsistent with any of the
terms hereof.
27
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement
to be
executed by their respective duly authorized officers as of the
date first above
written.
MORGAN STANLEY MORTGAGE CAPITAL
HOLDINGS LLC
By: /s/ Anthony J. Sfarra
--------------------------------------------
Name: Anthony J. Sfarra
-------------------------------------
Title: Vice President
-------------------------------------
MORGAN STANLEY CAPITAL I INC.
By: /s/ Anthony J. Sfarra
--------------------------------------------
Name: Anthony J. Sfarra
-------------------------------------
Title: Vice President
-------------------------------------
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
APPENDIX II
CERTAIN CHARACTERISTICS OF THE MORTGAGE LOANS
----------------------------------------------------------------------------------------------------------------------------------
MORTGAGE
CUT-OFF
LOAN MORTGAGE
MATURITY DATE
SELLER(1) LOAN NO. PROPERTY NAME(2) STREET ADDRESS
CITY STATE DATE BALANCE(6) NOTE DATE
----------------------------------------------------------------------------------------------------------------------------------
MSMCH 1 Columbia Center 701 Fifth Avenue &
Seattle WA 05/08/2012 $380,000,000 04/10/2007
403 Columbia Street
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio Roll-Up
04/01/2017 $170,000,000 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio - 25
MSMCH 2 East 67th St (I) 25 East 67th Street
New York NY 04/01/2017 $50,394,375 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio - 30
MSMCH 2 East 68th St (I) 30 East 68th Street
New York NY 04/01/2017 $46,497,210 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio - 30
MSMCH 2 East End Ave (I) 30 East End Avenue
New York NY 04/01/2017 $29,298,905 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio - 345
MSMCH 2 East 64th St (I) 345 East 64th Street
New York NY 04/01/2017 $18,074,783 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio - 192
MSMCH 2 East 75th St (I) 192 East 75th Street
New York NY 04/01/2017 $15,588,660 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Parkoff
Portfolio - 3
MSMCH 2 East 66th St (I) 3 East 66th Street
New York NY 04/01/2017 $10,146,068 03/30/2007
----------------------------------------------------------------------------------------------------------------------------------
Beacon Seattle &
DC Portfolio
Roll-Up
05/07/2012 $161,000,000 04/10/2007
----------------------------------------------------------------------------------------------------------------------------------
701 & 801
Market Square Pennsylvania Avenue,
MSMCH 3 (II) NW
Washington DC 05/07/2012 $24,876,667 04/10/2007
----------------------------------------------------------------------------------------------------------------------------------
Polk & Taylor 2521 S Clark Street
&
MSMCH 3 (II) 2530 Crystal Drive
Arlington VA 05/07/2012 $19,703,825 04/10/2007
----------------------------------------------------------------------------------------------------------------------------------
Wells Fargo
MSMCH 3 Center (II) 999 Third Avenue
Seattle WA 05/07/2012 $18,528,179 04/10/2007
----------------------------------------------------------------------------------------------------------------------------------
1120 20th Street NW;
Lafayette Center 1133 21st Street, NW;
MSMCH 3 (II) 1155 21st Street, NW
Washington DC 05/07/2012 $16,745,900 04/10/2007
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