Exhibit 99.5
Nationwide Mortgage Loan Purchase Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
(NATIONWIDE LOANS)
Mortgage Loan Purchase Agreement (this "Agreement"), dated as of
November 1, 2007, between Nationwide Life Insurance Company (the "Seller"), and
Xxxxxx Xxxxxxx Capital I Inc. (the "Purchaser").
The Seller agrees to sell, and the Purchaser agrees to purchase,
certain mortgage loans listed on Exhibit 1 hereto (the "Mortgage Loans") as
described herein. The Purchaser will convey the Mortgage Loans to a trust (the
"Trust") created pursuant to a Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of November 1, 2007, between the Purchaser, as
depositor, Capmark Finance Inc., as Capmark Master Servicer, Xxxxx Fargo Bank,
National Association, as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master
Servicer, Centerline Servicing Inc., as General Special Servicer, National
Consumer Cooperative Bank, as Co-op Special Servicer, LaSalle Bank National
Association, as Trustee and Custodian, and Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar and Authenticating Agent. In
exchange for the Mortgage Loans and certain other mortgage loans (the "Other
Mortgage Loans") to be purchased by the Purchaser, the Trust will issue to the
Depositor pass-through certificates to be known as Xxxxxx Xxxxxxx Capital I
Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (the
"Certificates"). The Certificates will be issued pursuant to the Pooling and
Servicing Agreement.
Capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
The Class A-1, Class A-1A, Class A-2, Class A-3, Class A-4, Class
A-M, Class A-MFL, Class A-MA, Class A-J, Class A-JFL and Class A-JA Certificates
(the "Public Certificates") will be sold by the Purchaser to Xxxxxx Xxxxxxx &
Co. Incorporated, Greenwich Capital Markets, Inc., Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx (except with respect to Class A-4 Certificate) and RBC Capital Markets
Corporation (collectively, the "Underwriters"), pursuant to an Underwriting
Agreement, between the Purchaser and the Underwriters, dated November 15, 2007
(the "Underwriting Agreement"), and the Class X-1, Class X-2, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class EI, Class R-I, Class R-II and
Class R-III Certificates (collectively, the "Private Certificates") will be sold
by the Purchaser to Xxxxxx Xxxxxxx & Co. Incorporated (in such capacity, the
"Initial Purchaser") pursuant to a Certificate Purchase Agreement, between the
Purchaser and the Initial Purchaser, dated November 15, 2007 (the "Certificate
Purchase Agreement"). The Underwriters will offer the Public Certificates for
sale publicly pursuant to a Prospectus dated June 22, 2007, as supplemented by a
Prospectus Supplement dated November 15, 2007 (together, the "Prospectus
Supplement"), and the Initial Purchaser will offer the Private Certificates
(other than the Class EI, Class R-I, Class R-II and Class R-III Certificates)
for sale in transactions exempt from the registration requirements of the
Securities Act of 1933 pursuant to a Private Placement Memorandum, dated as of
November 15, 2007 (the "Memorandum").
In consideration of the mutual agreements contained herein, the
Seller and the Purchaser hereby agree as follows:
Section 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on a servicing released basis, the Mortgage Loans
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit 1, as such schedule may be amended to reflect the actual Mortgage Loans
accepted by the Purchaser pursuant to the terms hereof. The Cut-Off Date with
respect to each Mortgage Loan is such Mortgage Loan's Due Date in the month of
November 2007. The Mortgage Loans and the Other Mortgage Loans will have an
aggregate principal balance as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
received, of $75,000,000. The sale of the Mortgage Loans shall take place on
November 29, 2007 or such other date as shall be mutually acceptable to the
parties hereto (the "Closing Date"). The purchase price to be paid by the
Purchaser for the Mortgage Loans shall equal the amount set forth as such
purchase price on the Xxxx of Sale. The purchase price shall be paid to the
Seller by wire transfer in immediately available funds on the Closing Date.
On the Closing Date, the Purchaser will assign to the Trustee
pursuant to the Pooling and Servicing Agreement all of its right, title and
interest in and to the Mortgage Loans and its rights under this Agreement (to
the extent set forth in Section 15), and the Trustee shall succeed to such
right, title and interest in and to the Mortgage Loans and the Purchaser's
rights under this Agreement (to the extent set forth in Section 15).
Section 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the consideration referred to in Section 1
hereof and the satisfaction of the conditions specified in Sections 6 and 7
hereof, the Seller does hereby transfer, assign, set over and otherwise convey
to the Purchaser, without recourse, all the right, title and interest of the
Seller, with the understanding that a Servicing Rights Purchase Agreement, dated
as of November 29, 2007, will be executed by the Seller and the applicable
Master Servicer, in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of the Closing Date. The Mortgage Loan Schedule, as it may be
amended from time to time on or prior to the Closing Date, shall conform to the
requirements of this Agreement and the Pooling and Servicing Agreement. In
connection with such transfer and assignment, the Seller shall deliver to the
Custodian on behalf of the Trustee, on behalf of the Purchaser, on or prior to
the Closing Date, the Mortgage Note (as described in clause (a) below) for each
Mortgage Loan and on or prior to the fifth Business Day after the Closing Date,
five limited powers of attorney substantially in the form attached hereto as
Exhibit 4 in favor of the Trustee, the applicable Master Servicer and the
applicable Special Servicer to empower the Trustee, the applicable Master
Servicer and, in the event of the failure or incapacity of the Trustee and the
applicable Master Servicer, the applicable Special Servicer, to submit for
recording, at the expense of the Seller, any mortgage loan documents required to
be recorded as described in the Pooling and Servicing Agreement and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files (so long as original counterparts have
previously been delivered to the Trustee). The Seller agrees to reasonably
cooperate with the Trustee, the applicable Master Servicer and the applicable
Special Servicer in connection with any additional powers of attorney or
revisions thereto that are requested by such parties for purposes of such
recordation. The parties hereto agree that no such power of attorney shall be
used with respect to any Mortgage Loan by or under authorization by any party
hereto except to the extent that the absence of a document described in the
second preceding sentence with respect to such Mortgage Loan remains unremedied
as of the earlier of (i) the date that is 180 days following the delivery of
notice of such absence to the Seller, but in no event earlier than 18 months
from the Closing Date, and (ii) the date (if any) on which such Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Trustee shall submit such
documents for recording, at the Seller's expense, after the periods set forth
above; provided, however, the Trustee shall not submit such assignments for
recording if the Seller produces evidence that it has sent any such assignment
for recording and certifies that the Seller is awaiting its return from the
applicable recording office. In addition, not later than the 30th day following
the Closing Date, the Seller shall deliver to the Custodian on behalf of the
Trustee each of the remaining documents or instruments specified below (with
such exceptions and additional time periods as are permitted by this Section)
with respect to each Mortgage Loan (each, a "Mortgage File"). (The Seller
acknowledges that the term "without recourse" does not modify the duties of the
Seller under Section 5 hereof.)
All Mortgage Files, or portions thereof, delivered prior to the
Closing Date are to be held by the Custodian on behalf of the Trustee in escrow
on behalf of the Seller at all times prior to the Closing Date. The Mortgage
Files shall be released from escrow upon closing of the sale of the Mortgage
Loans and payments of the purchase price therefor as contemplated hereby. The
Mortgage File for each Mortgage Loan shall contain the following documents:
(a) The original Mortgage Note bearing all intervening endorsements,
endorsed in blank or endorsed "Pay to the order of LaSalle Bank National
Association, as Trustee for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, without recourse, representation or
warranty" or if the original Mortgage Note is not included therein, then a lost
note affidavit and indemnity, with a copy of the Mortgage Note attached thereto;
(b) The original Mortgage, with evidence of recording thereon, and,
if the Mortgage was executed pursuant to a power of attorney, a certified true
copy of the power of attorney certified by the public recorder's office, with
evidence of recording thereon (if recording is customary in the jurisdiction in
which such power of attorney was executed), or certified by a title insurance
company or escrow company to be a true copy thereof; provided that if such
original Mortgage cannot be delivered with evidence of recording thereon on or
prior to the 90th day following the Closing Date because of a delay caused by
the public recording office where such original Mortgage has been delivered for
recordation or because such original Mortgage has been lost, the Seller shall
deliver or cause to be delivered to the Trustee a true and correct copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate (as defined below) of the Seller
stating that such original Mortgage has been sent to the appropriate public
recording official for recordation or (ii) in the case of an original Mortgage
that has been lost after recordation, a certification by the appropriate county
recording office where such Mortgage is recorded that such copy is a true and
complete copy of the original recorded Mortgage;
(c) The originals of all agreements modifying a Money Term or other
material modification, consolidation and extension agreements, if any, with
evidence of recording thereon (if applicable) or if any such original
modification, consolidation or extension agreement has been delivered to the
appropriate recording office for recordation and either has not yet been
returned on or prior to the 90th day following the Closing Date with evidence of
recordation thereon or has been lost after recordation, a true copy of such
modification, consolidation or extension certified by the Seller together with
(i) in the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original modification, consolidation
or extension agreement has been dispatched or sent to the appropriate public
recording official for recordation or (ii) in the case of an original
modification, consolidation or extension agreement that has been lost after
recordation, a certification by the appropriate county recording office where
such document is recorded that such copy is a true and complete copy of the
original recorded modification, consolidation or extension agreement, and the
originals of all assumption agreements, if any;
(d) An original Assignment of Mortgage for each Mortgage Loan, in
form and substance acceptable for recording (except for recording information
not yet available if the instrument being recorded has not been returned from
the applicable recording office), signed by the holder of record in blank or in
favor of "LaSalle Bank National Association, as Trustee for Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16";
(e) Originals of all intervening assignments of Mortgage, if any,
with evidence of recording thereon or, if such original assignments of Mortgage
have been delivered to the appropriate recorder's office for recordation,
certified true copies of such assignments of Mortgage certified by the Seller,
or in the case of an original blanket intervening assignment of Mortgage
retained by the Seller, a copy thereof certified by the Seller or, if any
original intervening assignment of Mortgage has not yet been returned on or
prior to the 90th day following the Closing Date from the applicable recording
office or has been lost, a true and correct copy thereof, together with (i) in
the case of a delay caused by the public recording office, an Officer's
Certificate of the Seller stating that such original intervening assignment of
Mortgage has been sent to the appropriate public recording official for
recordation or (ii) in the case of an original intervening assignment of
Mortgage that has been lost after recordation, a certification by the
appropriate county recording office where such assignment is recorded that such
copy is a true and complete copy of the original recorded intervening assignment
of Mortgage;
(f) If the related Assignment of Leases is separate from the
Mortgage, the original of such Assignment of Leases with evidence of recording
thereon or certified by a title insurance company or escrow company to be a true
copy thereof; provided that if such Assignment of Leases has not been returned
on or prior to the 90th day following the Closing Date because of a delay caused
by the applicable public recording office where such Assignment of Leases has
been delivered for recordation or because such original Assignment of Leases has
been lost, the Seller shall deliver or cause to be delivered to the Trustee a
true and correct copy of such Assignment of Leases submitted for recording,
together with, (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (as defined below) of the Seller stating that such
Assignment of Leases has been sent to the appropriate public recording official
for recordation or (ii) in the case of an original Assignment of Leases that has
been lost after recordation, a certification by the appropriate county recording
office where such Assignment of Leases is recorded that such copy is a true and
complete copy of the original recorded Assignment of Leases, in each case
together with an original assignment of such Assignment of Leases, in recordable
form (except for recording information not yet available if the instrument being
recorded has not been returned from the applicable recording office), signed by
the holder of record in favor of "LaSalle Bank National Association, as Trustee
for Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16," which assignment may be effected in the related
Assignment of Mortgage;
(g) The original or a copy of each guaranty, if any, constituting
additional security for the repayment of such Mortgage Loan;
(h) The original Title Insurance Policy, or in the event such
original Title Insurance Policy has not been issued, a binder, actual
"marked-up" title commitment, pro forma policy, or an agreement to provide any
of the foregoing pursuant to binding escrow instructions executed by the title
company or its authorized agent with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a copy of any of the foregoing
certified by the title company with the original Title Insurance Policy to
follow within 180 days of the Closing Date, or a preliminary title report with
the original Title Insurance Policy to follow within 180 days of the Closing
Date;
(i) (A) Copies of UCC financing statements (together with all
assignments thereof) filed in connection with a Mortgage Loan and (B) UCC-2 or
UCC-3 financing statements assigning such UCC financing statements to the
Trustee delivered in connection with the Mortgage Loan;
(j) Copies of the related ground lease(s), if any, to any Mortgage
Loan where the Mortgagor is the lessee under such ground lease and there is a
lien in favor of the mortgagee in such lease.
(k) Copies of any loan agreements, lock-box agreements and
intercreditor agreements, if any, related to any Mortgage Loan;
(l) Either (A) the original of each letter of credit, if any,
constituting additional collateral for such Mortgage Loan (other than letters of
credit representing tenant security deposits which have been collaterally
assigned to the lender), which shall be assigned and delivered to the Trustee
(or delivered to the Custodian on the Trustee's behalf) on behalf of the Trust
with a copy to be held by the applicable 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 the applicable
Primary Servicer (or Master Servicer) on behalf of the Trustee, with a copy to
be held by the Custodian on behalf of the Trustee, and applied, drawn, reduced
or released in accordance with documents evidencing or securing the applicable
Mortgage Loan, the Pooling and Servicing Agreement and the Primary Servicing
Agreement (it being understood that the Seller has agreed (a) that the proceeds
of such letter of credit belong to the Trust, (b) to notify, on or before the
Closing Date, the bank issuing the letter of credit that the letter of credit
and the proceeds thereof belong to the Trust, and to use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement thereof by the bank (with a copy of such
acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit and (c) to indemnify the Trust for any liabilities,
charges, costs, fees or other expenses accruing from the failure of the Seller
to assign the letter of credit hereunder). In the case of clause (B) above, any
letter of credit held by the applicable Primary Servicer (or Master Servicer)
shall be held in its capacity as agent of the Trust, and if the applicable
Primary Servicer (or Master Servicer) sells its rights to service the applicable
Mortgage Loan, the applicable Primary Servicer (or Master Servicer) has agreed
to assign the applicable letter of credit to the Trust or at the direction of
the applicable Special Servicer to such party as such Special Servicer may
instruct, in each case, at the expense of the applicable Primary Servicer (or
Master Servicer). The applicable Primary Servicer (or Master Servicer) has
agreed to indemnify the Trust for any loss caused by the ineffectiveness of such
assignment;
(m) The original or a copy of the environmental indemnity agreement,
if any, related to any Mortgage Loan;
(n) Copies of third-party management agreements, if any, for all
hotels and for such other Mortgaged Properties securing Mortgage Loans with a
Cut-Off Date principal balance equal to or greater than $20,000,000;
(o) The original of any Environmental Insurance Policy or, if the
original is held by the related Mortgagor, a copy thereof;
(p) A copy of any affidavit and indemnification agreement in favor
of the lender;
(q) With respect to hospitality properties, a copy of any franchise
agreement, franchise comfort letter and applicable assignment or transfer
documents;
"Officer's Certificate" shall mean a certificate signed by one or
more of the Chairman of the Board, any Vice Chairman, the President, any Senior
Vice President, any Vice President, any Assistant Vice President, any Treasurer
or any Assistant Treasurer.
The Assignment of Mortgage, intervening assignments of Mortgage and
assignment of Assignment of Leases referred to in clauses (d), (e) and (f) may
be in the form of a single instrument assigning the Mortgage and the Assignment
of Leases to the extent permitted by applicable law. To avoid the unnecessary
expense and administrative inconvenience associated with the execution and
recording or filing of multiple assignments of mortgages, assignments of leases
(to the extent separate from the mortgages) and assignments of UCC financing
statements, the Seller shall execute, in accordance with the third succeeding
paragraph, the assignments of mortgages, the assignments of leases (to the
extent separate from the mortgages) and the assignments of UCC financing
statements relating to the Mortgage Loans naming the Trustee on behalf of the
Certificateholders as assignee. Notwithstanding the fact that such assignments
of mortgages, assignments of leases (to the extent separate from the assignments
of mortgages) and assignments of UCC financing statements shall name the Trustee
on behalf of the Certificateholders as the assignee, the parties hereto
acknowledge and agree that the Mortgage Loans shall for all purposes be deemed
to have been transferred from the Seller to the Purchaser and from the Purchaser
to the Trustee on behalf of the Certificateholders.
If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in clauses
(b), (c), (e) or (f), with evidence of recording thereon, because of a delay
caused by the public recording office where such document or instrument has been
delivered for recordation within such 90-day period, but the Seller delivers a
photocopy thereof (to the extent available, certified by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording or, if such certification is not available, together
with an Officer's Certificate of the Seller stating that such document has been
sent to the appropriate public recording official for recordation), to the
Custodian on behalf of the Trustee within such 90-day period, the Seller shall
then deliver within 180 days after the Closing Date the recorded document (or
within such longer period after the Closing Date as the Custodian on behalf of
the Trustee may consent to, which consent shall not be withheld so long as the
Seller is, as certified in writing to the Trustee no less often than monthly, in
good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy).
The Trustee, as assignee or transferee of the Purchaser, shall be
entitled to all scheduled payments of principal due thereon after the Cut-Off
Date, all other payments of principal collected after the Cut-Off Date (other
than scheduled payments of principal due on or before the Cut-Off Date), and all
payments of interest on the Mortgage Loans allocable to the period commencing on
the Cut-Off Date. All scheduled payments of principal and interest due on or
before the Cut-Off Date and collected after the Cut-Off Date shall belong to the
Seller.
Within 45 days following the Closing Date, the Seller shall deliver
and the Purchaser, the Custodian on behalf of the Trustee or the agents of
either may submit or cause to be submitted for recordation at the expense of the
Seller, in the appropriate public office for real property records, each
assignment referred to in clauses (d) and (f)(ii) above (with recording
information in blank if such information is not yet available). Within 15 days
following the Closing Date, the Seller shall deliver and the Purchaser, the
Custodian on behalf of the Trustee or the agents of either may submit or cause
to be submitted for filing, at the expense of the Seller, in the appropriate
public office for Uniform Commercial Code financing statements, the assignment
referred to in clause (i) above. If any such document or instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare a substitute therefor or cure such defect, and the
Seller shall, at its own expense (except in the case of a document or instrument
that is lost by the Trustee), record or file, as the case may be, and deliver
such document or instrument in accordance with this Section 2.
As to each Mortgage Loan secured by a Mortgaged Property with
respect to which the related Mortgagor has entered into a franchise agreement,
the Seller shall provide a notice on or prior to the date that is thirty (30)
days after the Closing Date to the franchisor of the transfer of such Mortgage
Loan to the Trust pursuant to the Pooling and Servicing Agreement, and inform
the franchisor that any notices to the Mortgagor's lender pursuant to such
franchise agreement should thereafter be forwarded to the applicable Master
Servicer and provide a franchise comfort letter from the franchisor on or prior
to the date that is thirty (30) days after the Closing Date. As to each Mortgage
Loan secured by a Mortgaged Property with respect to which a letter of credit is
in place, the Seller shall notify, on or before the Closing Date, the bank
issuing the letter of credit that such Mortgage Loan will be transferred to the
Trust pursuant to the Pooling and Servicing Agreement and such letter of credit
and the proceeds thereof belong to the Trust or the applicable Primary Servicer
(on behalf of the Trustee), as applicable, after such transfer, and inform such
issuing bank that any notices to the Mortgagor's lender pursuant to such letter
of credit should thereafter be forwarded to the Master Servicer or the
applicable Primary Servicer, as the case may be, and use reasonable efforts to
obtain within 30 days (but in any event to obtain within 90 days) following the
Closing Date, an acknowledgement of the above notice by the bank (with a copy of
such acknowledgement to be sent to the Custodian on behalf of the Trustee) or a
reissued letter of credit. After the Closing Date, with respect to any letter of
credit that has not yet been assigned to the Trust (or whose beneficiary has not
yet been changed to that Trust), upon the written request of the applicable
Master Servicer or the applicable Primary Servicer, the Seller will draw on such
letter of credit as directed by the Master Servicer or such Primary Servicer in
such notice to the extent the Seller has the right to do so.
Documents that are in the possession of the Seller, its agents or
its subcontractors that relate to the servicing of any Mortgage Loans and that
are not required to be a part of the Mortgage File and are reasonably necessary
for the ongoing administration and/or servicing of the applicable Mortgage Loan
(the "Servicing File") shall be delivered by the Seller to or at the direction
of the applicable Master Servicer, on behalf of the Purchaser, on or prior to
the 75th day after the Closing Date, in accordance with the Primary Servicing
Agreement, if applicable.
The Servicing File shall include, to the extent required to be (and
actually) delivered to the Seller pursuant to the applicable Mortgage Loan
documents, copies of the following items: the Mortgage Note, any Mortgage, the
Assignment of Leases and the Assignment of Mortgage, any guaranty/indemnity
agreement, any loan agreement, the insurance policies or certificates, as
applicable, the property inspection reports, any financial statements on the
property, any escrow analysis, the tax bills, the Appraisal, the environmental
report, the engineering report, the asset summary, financial information on the
Mortgagor/sponsor and any guarantors, any letters of credit, any intercreditor
agreements and any Environmental Insurance Policies; provided, however, the
Seller shall not be required to deliver any draft documents, attorney-client
privileged communications, internal correspondence or credit analysis. Delivery
of any of the foregoing documents to the Primary Servicer shall be deemed a
delivery to the applicable Master Servicer and satisfy Seller's obligations
under this sub-paragraph. Each of the foregoing items shall be delivered by the
Seller in electronic form, to the extent such document is available in such form
and such form is reasonably acceptable to the applicable Master Servicer.
Upon the sale of the Mortgage Loans by the Seller to the Purchaser
pursuant to this Agreement, the ownership of each Mortgage Note, Mortgage and
the other contents of the related Mortgage File shall be vested in the Purchaser
and its assigns, and the ownership of all records and documents with respect to
the related Mortgage Loan prepared by or that come into the possession of the
Seller shall immediately vest in the Purchaser and its assigns, and shall be
delivered promptly by the Seller to or on behalf of either the Custodian (on
behalf of the Trustee) or the applicable Master Servicer as set forth herein,
subject to the requirements of the Primary Servicing Agreement. The Seller's and
Purchaser's records shall reflect the transfer of each Mortgage Loan from the
Seller to the Purchaser and its assigns as a sale.
It is the express intent of the parties hereto that the conveyance
of the Mortgage Loans and related property to the Purchaser by the Seller as
provided in this Section 2 be, and be construed as, an absolute sale of the
Mortgage Loans and related property. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans and
related property by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, in the event that, notwithstanding the intent
of the parties, the Mortgage Loans or any related property are held to be the
property of the Seller, or if for any other reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans or any related
property, then:
(i) this Agreement shall be deemed to be a security agreement; and
(ii) the conveyance provided for in this Section 2 shall be deemed
to be a grant by the Seller to the Purchaser of a security interest in all
of the Seller's right, title, and interest, whether now owned or hereafter
acquired, in and to:
(A) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property consisting of, arising from or relating to any of the
following property: the Mortgage Loans identified on the Mortgage
Loan Schedule, including the related Mortgage Notes, Mortgages,
security agreements, and title, hazard and other insurance policies,
all distributions with respect thereto payable after the Cut-Off
Date, all substitute or replacement Mortgage Loans and all
distributions with respect thereto, and the Mortgage Files;
(B) All accounts, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit, investment
property and other rights arising from or by virtue of the
disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or claims against other Persons
with respect to, all or any part of the collateral described in
clause (A) above (including any accrued discount realized on
liquidation of any investment purchased at a discount); and
(C) All cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above.
The possession by the Purchaser or its designee of the Mortgage
Notes, the Mortgages, and such other goods, letters of credit, advices of
credit, instruments, money, documents, chattel paper or certificated securities
shall be deemed to be possession by the secured party or possession by a
purchaser for purposes of perfecting the security interest pursuant to the
Uniform Commercial Code (including, without limitation, Sections 9-305 and 9-115
thereof) as in force in the relevant jurisdiction. Notwithstanding the
foregoing, the Seller makes no representation or warranty as to the perfection
of any such security interest.
Notifications to Persons holding such property, and acknowledgments,
receipts, or confirmations from persons holding such property, shall be deemed
to be notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents of, or Persons holding for, the
Purchaser or its designee, as applicable, for the purpose of perfecting such
security interest under applicable law.
The Seller shall, to the extent consistent with this Agreement, take
such reasonable actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the property described above, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of the Agreement. In such case, the Seller shall file all filings necessary to
maintain the effectiveness of any original filings necessary under the Uniform
Commercial Code as in effect in any jurisdiction to perfect such security
interest in such property. In connection herewith, the Purchaser shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Notwithstanding anything to the contrary contained herein, and
subject to Section 2(a), the Purchaser shall not be required to purchase any
Mortgage Loan as to which any Mortgage Note (endorsed as described in clause (a)
above) or lost note affidavit and indemnity required to be delivered to or on
behalf of the Trustee or the applicable Master Servicer pursuant to this Section
2 on or before the Closing Date is not so delivered, or is not properly executed
or is defective on its face, and the Purchaser's acceptance of the related
Mortgage Loan on the Closing Date shall in no way constitute a waiver of such
omission or defect or of the Purchaser's or its successors' and assigns' rights
in respect thereof pursuant to Section 5.
Section 3. Examination of Mortgage Files and Due Diligence Review.
The Seller shall (i) deliver to the Purchaser on or before the Closing Date a
diskette acceptable to the Purchaser that contains such information about the
Mortgage Loans as may be reasonably requested by the Purchaser, (ii) deliver to
the Purchaser investor files (collectively the "Collateral Information") with
respect to the assets proposed to be included in the Mortgage Pool and made
available at the Purchaser's headquarters in New York, and (iii) otherwise
cooperate fully with the Purchaser in its examination of the credit files,
underwriting documentation and Mortgage Files for the Mortgage Loans and its due
diligence review of the Mortgage Loans. The fact that the Purchaser has
conducted or has failed to conduct any partial or complete examination of the
credit files, underwriting documentation or Mortgage Files for the Mortgage
Loans shall not affect the right of the Purchaser or the Trustee to cause the
Seller to cure any Material Document Defect or Material Breach (each as defined
below), or to repurchase or replace the defective Mortgage Loans pursuant to
Section 5 of this Agreement.
On or prior to the Closing Date, the Seller shall allow
representatives of any of the Purchaser, each Underwriter, the Initial
Purchaser, the Trustee, the Custodian, the applicable Special Servicer and each
Rating Agency to examine and audit all books, records and files pertaining to
the Mortgage Loans, the Seller's underwriting procedures and the Seller's
ability to perform or observe all of the terms, covenants and conditions of this
Agreement. Such examinations and audits shall take place at one or more offices
of the Seller during normal business hours and shall not be conducted in a
manner that is disruptive to the Seller's normal business operations upon
reasonable prior advance notice. In the course of such examinations and audits,
the Seller will make available to such representatives of any of the Purchaser,
each Underwriter, the Initial Purchaser, the Trustee, the Custodian, the
applicable Special Servicer and each Rating Agency reasonably adequate
facilities, as well as the assistance of a sufficient number of knowledgeable
and responsible individuals who are familiar with the Mortgage Loans and the
terms of this Agreement, and the Seller shall cooperate fully with any such
examination and audit in all material respects. On or prior to the Closing Date,
the Seller shall provide the Purchaser with all material information regarding
the Seller's financial condition and access to knowledgeable financial or
accounting officers for the purpose of answering questions with respect to the
Seller's financial condition, financial statements as provided to the Purchaser
or other developments affecting the Seller's ability to consummate the
transactions contemplated hereby or otherwise affecting the Seller in any
material respect. Within 45 days after the Closing Date, the Seller shall
provide the applicable Master Servicer or Primary Servicer, if applicable, with
any additional information identified by the applicable Master Servicer or
Primary Servicer, if applicable, as necessary to complete the CMSA Property
File, to the extent that such information is available.
The Purchaser may exercise any of its rights hereunder through one
or more designees or agents; provided the Purchaser has provided the Seller with
prior notice of the identity of such designee or agent.
The Purchaser shall keep confidential any information regarding the
Seller and the Mortgage Loans that has been delivered into the Purchaser's
possession and that is not otherwise publicly available; provided, however, that
such information shall not be kept confidential (and the right to require
confidentiality under any confidentiality agreement is hereby waived) to the
extent such information is required to be included in the Memorandum or the
Prospectus Supplement or the Purchaser is required by law or court order to
disclose such information. If the Purchaser is required to disclose in the
Memorandum or the Prospectus Supplement confidential information regarding the
Seller as described in the preceding sentence, the Purchaser shall provide to
the Seller a copy of the proposed form of such disclosure prior to making such
disclosure and the Seller shall promptly, and in any event within two Business
Days, notify the Purchaser of any inaccuracies therein, in which case the
Purchaser shall modify such form in a manner that corrects such inaccuracies. If
the Purchaser is required by law or court order to disclose confidential
information regarding the Seller as described in the second preceding sentence,
the Purchaser shall notify the Seller and cooperate in the Seller's efforts to
obtain a protective order or other reasonable assurance that confidential
treatment will be accorded such information and, if in the absence of a
protective order or such assurance, the Purchaser is compelled as a matter of
law to disclose such information, the Purchaser shall, prior to making such
disclosure, advise and consult with the Seller and its counsel as to such
disclosure and the nature and wording of such disclosure and the Purchaser shall
use reasonable efforts to obtain confidential treatment therefor.
Notwithstanding the foregoing, if reasonably advised by counsel that the
Purchaser is required by a regulatory agency or court order to make such
disclosure immediately, then the Purchaser shall be permitted to make such
disclosure without prior review by the Seller.
Section 4. Representations and Warranties of the Seller and the
Purchaser.
(a) To induce the Purchaser to enter into this Agreement, the Seller
hereby makes for the benefit of the Purchaser and its assigns with respect to
each Mortgage Loan as of the date hereof (or as of such other date specifically
set forth in the particular representation and warranty) each of the
representations and warranties set forth on Exhibit 2 hereto, except as
otherwise set forth on Schedule A attached hereto, and hereby further represents
and warrants to the Purchaser as of the date hereof that:
(i) The Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Ohio. The
Seller has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, and assuming the due authorization, execution
and delivery hereof by the Purchaser, this Agreement constitutes the
valid, legal and binding agreement of the Seller, enforceable in
accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of
creditors generally, (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law) or (D)
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
liabilities under applicable securities laws.
(iii) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Seller with this Agreement, or the
consummation by the Seller of any transaction contemplated hereby, other
than (1) such qualifications as may be required under state securities or
blue sky laws, (2) the filing or recording of financing statements,
instruments of assignment and other similar documents necessary in
connection with the Seller's sale of the Mortgage Loans to the Purchaser,
(3) such consents, approvals, authorizations, qualifications,
registrations, filings or notices as have been obtained and (4) where the
lack of such consent, approval, authorization, qualification,
registration, filing or notice would not have a material adverse effect on
the performance by the Seller under this Agreement.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser,
nor the execution, delivery or performance of this Agreement by the
Seller, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Seller's certificate of incorporation or bylaws
documents, (B) any term or provision of any material agreement, contract,
instrument or indenture to which the Seller is a party or by which it or
any of its assets is bound or results in the creation or imposition of any
lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument, other than
pursuant to this Agreement, or (C) after giving effect to the consents or
taking of the actions contemplated in subsection (iii), any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or its assets,
except where in any of the instances contemplated by clauses (B) or (C)
above, any conflict, breach or default, or creation or imposition of any
lien, charge or encumbrance, will not have a material adverse effect on
the consummation of the transactions contemplated hereby by the Seller or
materially and adversely affect its ability to perform its obligations and
duties hereunder or result in any material adverse change in the business,
operations, financial condition, properties or assets of the Seller, or in
any material impairment of the right or ability of the Seller to carry on
its business substantially as now conducted.
(v) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened in
writing against the Seller before any court, administrative agency or
other tribunal, the outcome of which could reasonably be expected to
materially and adversely affect the transfer of the Mortgage Loans to the
Purchaser or the execution or delivery by, or enforceability against, the
Seller of this Agreement or have an effect on the financial condition of
the Seller that would materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement.
(vi) On the Closing Date, the sale of the Mortgage Loans pursuant to
this Agreement will effect a transfer by the Seller of all of its right,
title and interest in and to the Mortgage Loans to the Purchaser.
(vii) (x) The Nationwide Mortgage Loan Information (as defined in
that certain indemnification agreement, dated as of November 15, 2007,
between the Seller, the Purchaser, the Underwriters and the Initial
Purchaser (the "Indemnification Agreement")) contained in the Time of Sale
Information, any Free Writing Prospectus (and "ABS informational and
computational material" as defined in Regulation AB) that is not Time of
Sale Information but was sent to investors prior to Time of Sale, the
Memorandum and the Prospectus Supplement as of the date thereof, at the
Time of Sale and as of the Closing Date (any of the foregoing terms not
defined herein, as defined in the Indemnification Agreement) 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 (provided
that the same qualifications and exclusions as set forth in Section 1(a)
of the Indemnification Agreement with respect to the foregoing materials
shall apply mutatis mutandis) and (y) with respect to the Mortgage Loans
and the Seller's role as "originator" (or the role of any third party as
"originator" of any Mortgage Loan for which the Seller was not the
originator) and "sponsor" in connection with the issuance of the
Registered Certificates, the information regarding the Mortgage Loans, the
related Borrowers, the related Mortgaged Properties and/or the Seller
contained in the Prospectus Supplement complies in all material respects
with the applicable disclosure requirements of Regulation AB (any of the
foregoing terms not defined herein, as defined in the Indemnification
Agreement).
To induce the Purchaser to enter into this Agreement, the Seller
hereby covenants that the foregoing representations and warranties and those set
forth on Exhibit 2 hereto will be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on the Closing Date,
provided that any representations and warranties made as of a specified date
shall be true and correct in all material respects as of such specified date.
Each of the representations, warranties and covenants made by the
Seller pursuant to this Section 4(a) shall survive the sale of the Mortgage
Loans and shall continue in full force and effect notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes.
(viii) To induce the Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as of the date
hereof:
(ix) The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware
with full power and authority to carry on its business as presently
conducted by it.
(x) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into
and consummate all transactions contemplated by this Agreement. The
Purchaser has duly and validly authorized the execution, delivery and
performance of this Agreement and has duly and validly executed and
delivered this Agreement. This Agreement, assuming due authorization,
execution and delivery by the Seller, constitutes the valid and binding
obligation of the Purchaser, enforceable against it in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforcement of creditors' rights generally and by general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(xi) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby that
has not been obtained or made by the Purchaser.
(xii) Neither the purchase of the Mortgage Loans nor the execution,
delivery and performance of this Agreement by the Purchaser will violate
the Purchaser's certificate of incorporation or by-laws or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default) under, or result in a breach of, any material
agreement, contract, instrument or indenture to which the Purchaser is a
party or that may be applicable to the Purchaser or its assets.
(xiii) The Purchaser's execution and delivery of this Agreement and
its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, rule, writ, injunction, order or
decree of any court, or order or regulation of any federal, state or
municipal government agency having jurisdiction over the Purchaser or its
assets, which violation could materially and adversely affect the
condition (financial or otherwise) or the operation of the Purchaser or
its assets or could materially and adversely affect its ability to perform
its obligations and duties hereunder.
(xiv) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, the execution, delivery or enforceability of this Agreement
or have an effect on the financial condition of the Purchaser that would
materially and adversely affect the ability of the Purchaser to perform
its obligation under this Agreement.
(xv) The Purchaser has not dealt with any broker, investment banker,
agent or other person, other than the Seller, the Underwriters, the
Initial Purchaser and their respective affiliates, that may be entitled to
any commission or compensation in connection with the sale of the Mortgage
Loans or consummation of any of the transactions contemplated hereby.
To induce the Seller to enter into this Agreement, the Purchaser
hereby covenants that the foregoing representations and warranties will be true
and correct in all material respects on and as of the Closing Date with the same
effect as if made on the Closing Date.
Each of the representations and warranties made by the Purchaser
pursuant to this Section 4(b) shall survive the purchase of the Mortgage Loans.
Section 5. Remedies Upon Breach of Representations and Warranties
Made by the Seller.
(a) It is hereby acknowledged that the Seller shall make for the
benefit of the Trustee on behalf of the holders of the Certificates, whether
directly or by way of the Purchaser's assignment of its rights hereunder to the
Trustee, the representations and warranties set forth on Exhibit 2 hereto (each
as of the date hereof unless otherwise specified).
(b) It is hereby further acknowledged that if any document required
to be delivered to the Custodian on behalf of the Trustee pursuant to Section 2
is not delivered as and when required (and including the expiration of any grace
or cure period), is not properly executed or is defective on its face, or if
there is a breach of any of the representations and warranties required to be
made by the Seller regarding the characteristics of the Mortgage Loans and/or
the related Mortgaged Properties as set forth in Exhibit 2 hereto, and in either
case such defect or breach, either (i) materially and adversely affects the
interests of the holders of the Certificates in the related Mortgage Loan, or
(ii) both (A) the document defect or breach materially and adversely affects the
value of the Mortgage Loan and (B) the Mortgage Loan is a Specially Serviced
Mortgage Loan or Rehabilitated Mortgage Loan (such a document defect described
in the preceding clause (i) or (ii), a "Material Document Defect" and such a
breach described in the preceding clause (i) or (ii) a "Material Breach"), the
party discovering such Material Document Defect or Material Breach shall
promptly notify, in writing, the other party; provided that any breach of the
representation and warranty contained in paragraph (38) of such Exhibit 2 shall
constitute a Material Breach only if such prepayment premium or yield
maintenance charge is not deemed "customary" for commercial mortgage loans as
evidenced by (i) an opinion of tax counsel to such effect or (ii) a
determination by the Internal Revenue Service that such provision is not
customary. Promptly (but in any event within three Business Days) upon becoming
aware of any such Material Document Defect or Material Breach, the applicable
Master Servicer shall, and the applicable Special Servicer may, request that the
Seller, not later than 90 days from the Seller's receipt of the notice of such
Material Document Defect or Material Breach, cure such Material Document Defect
or Material Breach, as the case may be, in all material respects; provided,
however, that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, and such Material Document Defect or Material Breach would not cause the
Mortgage Loan to be other than a "qualified mortgage" (as defined in the Code),
but the Seller is diligently attempting to effect such correction or cure, as
certified by the Seller in an Officer's Certificate delivered to the Trustee,
then the cure period will be extended for an additional 90 days unless, solely
in the case of a Material Document Defect, (x) the Mortgage Loan is, at the end
of the initial 90-day period, a Specially Serviced Mortgage Loan and a Servicing
Transfer Event has occurred as a result of a monetary default or as described in
clause (ii) or clause (v) of the definition of "Servicing Transfer Event" in the
Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to the Seller by the Trustee pursuant to
Section 2.2 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect. The parties
acknowledge that neither delivery of a certification or schedule of exceptions
to the Seller pursuant to Section 2.2 of the Pooling and Servicing Agreement or
otherwise nor possession of such certification or schedule by the Seller shall,
in and of itself, constitute delivery of notice of any Material Document Defect
or knowledge or awareness by the Seller of any Material Document Defect listed
therein.
The Seller hereby covenants and agrees that, if any such Material
Document Defect or Material Breach cannot be corrected or cured in all material
aspects within the above cure periods, the Seller shall, on or before the
termination of such cure periods, either (i) repurchase the affected Mortgage
Loan or REO Mortgage Loan from the Purchaser or its assignee at the Purchase
Price as defined in the Pooling and Servicing Agreement, or (ii) if within the
two-year period commencing on the Closing Date, at its option replace, without
recourse, any Mortgage Loan or REO Mortgage Loan to which such defect relates
with a Qualifying Substitute Mortgage Loan. If such Material Document Defect or
Material Breach would cause the Mortgage Loan to be other than a "qualified
mortgage" (as defined in the Code), then notwithstanding the previous sentence,
such repurchase or substitution must occur within 90 days from the earlier of
the date the Seller discovered or was notified of the breach or defect. The
Seller agrees that any substitution shall be completed in accordance with the
terms and conditions of the Pooling and Servicing Agreement.
If (i) a Mortgage Loan is to be repurchased or replaced in
connection with a Material Document Defect or Material Breach as contemplated
above, (ii) such Mortgage Loan is cross-collateralized and cross-defaulted with
one or more other Mortgage Loans in the Trust and (iii) the applicable document
defect or breach does not constitute a Material Document Defect or Material
Breach, as the case may be, as to such other Mortgage Loans (without regard to
this paragraph), then the applicable document defect or breach (as the case may
be) shall be deemed to constitute a Material Document Defect or Material Breach,
as the case may be, as to each such other Mortgage Loan for purposes of the
above provisions, and the Seller shall be obligated to repurchase or replace
each such other Mortgage Loan in accordance with the provisions above, unless,
in the case of such breach or document defect, both of the following conditions
would be satisfied if the Seller were to repurchase or replace only those
Mortgage Loans as to which a Material Breach had occurred without regard to this
paragraph (the "Affected Loan(s)"): (1) the debt service coverage ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) for the four calendar
quarters immediately preceding the repurchase or replacement (determined as
provided in the definition of Debt Service Coverage Ratio in the Pooling and
Servicing Agreement, except that net cash flow for such four calendar quarters,
rather than year-end, shall be used) is equal to the greater of (x) the debt
service coverage ratio for all such Mortgage Loans (including the Affected
Loan(s)) set forth under the heading "NCF DSCR" in Appendix II to the Final
Prospectus Supplement and (y) 1.25x, and (2) the Loan-to-Value Ratio for all
such other Mortgage Loans (excluding the Affected Loan(s)) is not greater than
the lesser of (x) the current loan-to-value ratio for all such Mortgage Loans
(including the Affected Loan(s)) set forth under the heading "Cut-Off Date LTV"
in Appendix II to the Final Prospectus Supplement and (y) 75%. The determination
of the applicable Master Servicer as to whether either of the conditions set
forth above has been satisfied shall be conclusive and binding in the absence of
manifest error. The applicable Master Servicer will be entitled to cause, or
direct the Seller to cause, to be delivered to the applicable Master Servicer at
the Seller's expense (i) an Appraisal of any or all of the related Mortgaged
Properties for purposes of determining whether the condition set forth in clause
(2) above has been satisfied, in each case at the expense of the Seller if the
scope and cost of the Appraisal is approved by the Seller (such approval not to
be unreasonably withheld) and (ii) an Opinion of Counsel that not requiring the
repurchase of each such Cross-Collateralized Loan will not result in an Adverse
REMIC Event.
With respect to any Mortgage Loan that is cross-defaulted and/or
cross-collateralized with any other Mortgage Loan conveyed hereunder, to the
extent that the Seller is required to repurchase or substitute for such Mortgage
Loan (each, a "Repurchased Loan") in the manner prescribed above while the
Trustee (as assignee of the Purchaser) continues to hold any other Mortgage Loan
that is cross-collateralized and/or cross-defaulted (each, a
"Cross-Collateralized Loan") with such Repurchased Loan, the Seller and the
Purchaser hereby agree to modify, prior to such repurchase or substitution, the
related Mortgage Loan documents in a manner such that such affected Repurchased
Loan, on the one hand, and any related Crossed-Collateralized Loans held by the
Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that the Seller shall have
furnished the Trustee, at the expense of the Seller, a nondisqualification
opinion that such modification shall not cause an Adverse REMIC Event; provided,
further, that if such nondisqualification opinion cannot be furnished, the
Seller and the Purchaser agree that such repurchase or substitution of only the
Repurchased Loan, notwithstanding anything to the contrary herein, shall not be
permitted and the Seller shall repurchase or substitute for the Repurchased Loan
and all related Crossed-Collateralized Loans. Any reserve or other cash
collateral or letters of credit securing the Cross-Collateralized Loans shall be
allocated between such Mortgage Loans in accordance with the Mortgage Loan
documents. All other terms of the Mortgage Loans shall remain in full force and
effect, without any modification thereof. The Mortgagors set forth on Schedule B
hereto are intended third-party beneficiaries of the provisions set forth in
this paragraph and the preceding paragraph. The provisions of this paragraph and
the preceding paragraph may not be modified with respect to any Mortgage Loan
without the related Mortgagor's consent.
Upon occurrence (and after any applicable cure or grace period), any
of the following document defects shall be conclusively presumed materially and
adversely to affect the interests of Certificateholders in a Mortgage Loan and
be a Material Document Defect: (i) the absence from the Mortgage File of the
original signed Mortgage Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity and a copy of the Mortgage Note; (ii) the absence
from the Mortgage File of the item called for by paragraph (b) of the definition
of Mortgage File; or (iii) the absence from the Mortgage File of the item called
for by paragraph (h) of the definition of Mortgage File. If any of the foregoing
Material Document Defects is discovered by the Custodian (or the Trustee if
there is no Custodian), the Trustee (or as set forth in Section 2.3(a) of the
Pooling and Servicing Agreement, the applicable Master Servicer) will take the
steps described elsewhere in this Section, including the giving of notices to
the Rating Agencies and the parties hereto and making demand upon the Seller for
the cure of the Material Document Defect or repurchase or replacement of the
related Mortgage Loan.
If the Seller disputes that a Material Document Defect or Material
Breach exists with respect to a Mortgage Loan or otherwise refuses (i) to effect
a correction or cure of such Material Document Defect or Material Breach, (ii)
to repurchase the Affected Loan from the Trust or (iii) to replace such Mortgage
Loan with a Qualifying Substitute Mortgage Loan, then provided that (x) the
period of time provided for the Seller to correct, repurchase or cure has
expired and (y) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan, the applicable Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to Section 9.5,
Section 9.12, Section 9.15 and Section 9.36, as applicable, of the Pooling and
Servicing Agreement, while pursuing the repurchase claim. The Seller
acknowledges and agrees that any modification of the Mortgage Loan pursuant to
such a work-out shall not constitute a defense to any repurchase claim nor shall
such modification or work-out change the Purchase Price due from the Seller for
any repurchase claim. Any sale of the Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the REO Property, to a Person other than the Seller
shall be without (i) recourse of any kind (either express or implied) by such
Person against the Seller and (ii) representation or warranty of any kind
(either express or implied) by the Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the related REO Property or Mortgage Loan) shall not prejudice any claim against
the Seller for repurchase of the REO Mortgage Loan or REO Property. In such an
event, the applicable Master Servicer or the applicable Special Servicer, as
applicable, shall be required to notify the Seller of the discovery of the
Material Document Defect or Material Breach and the Seller shall be required to
follow the procedures set forth in this Agreement to correct or cure such
Material Document Defect or Material Breach or purchase the REO Property at the
Purchase Price. If the Seller fails to correct or cure the Material Document
Defect or Material Breach or purchase the REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Mortgage Loan or the Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.30 of the Pooling and Servicing Agreement, the Seller will be
obligated to pay to the Trust the difference between any Liquidation Proceeds
received upon such liquidation (including those arising from any sale to the
Seller) and the Purchase Price; provided that the prevailing party in such
action shall be entitled to recover all costs, fees and expenses (including
reasonable attorneys' fees) related thereto.
In connection with any liquidation or sale of a Mortgage Loan or REO
Property as described above, the applicable Special Servicer will not receive a
Liquidation Fee in connection with such liquidation or sale or any portion of
the Work-Out Fee that accrues after the Seller receives notice of a Material
Document Defect or Material Breach until a final determination has been made, as
set forth in the prior paragraph, as to whether the Seller is or was obligated
to repurchase such related Mortgage Loan or REO Property. Upon such
determination, the applicable Special Servicer will be entitled: (i) with
respect to a determination that the Seller is or was obligated to repurchase, to
collect a Liquidation Fee, if due in accordance with the definition thereof,
based upon the full Purchase Price of the related Mortgage Loan or REO property,
with such Liquidation Fee payable by the Seller or (ii) with respect to a
determination that Seller is not or was not obligated to repurchase (or the
Trust decides that it will no longer pursue a claim against the Seller for
repurchase), (A) to collect a Liquidation Fee based upon the Liquidation
Proceeds as received upon the actual sale or liquidation of such Mortgage Loan
or REO Property, and (B) to collect any accrued and unpaid Work-Out Fee, based
on amounts that were collected for as long as the related Mortgage Loan was a
Rehabilitated Mortgage Loan, in each case with such amount to be paid from
amounts in the Certificate Account.
The obligations of the Seller set forth in this Section 5(b) to cure
a Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach in
respect of an outstanding Mortgage Loan; provided, that this limitation shall
not in any way limit the Purchaser's rights or remedies upon breach of any other
representation or warranty or covenant by the Seller set forth in this Agreement
(other than those set forth in Exhibit 2).
Notwithstanding the foregoing, in the event that there is a breach
of the representation and warranty set forth in paragraph 41 of Exhibit 2
attached hereto because the underlying loan documents do not provide for the
payment by the Mortgagor of reasonable costs and expenses associated with the
defeasance or assumption of a Mortgage Loan by the Mortgagor, the Seller hereby
covenants and agrees to pay such reasonable costs and expenses, to the extent an
amount is due and not paid by the related Mortgagor. The parties hereto
acknowledge that the payment of such reasonable costs and expenses shall be the
Seller's sole obligation with respect to the breaches discussed in the previous
sentence. The Seller shall have no obligation to pay for any of the foregoing
costs if the applicable Mortgagor has an obligation to pay for such costs.
The Seller hereby agrees that it will pay for any expense incurred
by the applicable Master Servicer or the applicable Special Servicer, as
applicable, in connection with modifying a Mortgage Loan pursuant to Section 2.3
of the Pooling and Servicing Agreement in order for such Mortgage Loan to be a
"qualified substitute mortgage loan" within the meaning of the Treasury
Regulations promulgated under the Code. Upon a breach of the representation and
warranty set forth in paragraph 37 of Exhibit 2 attached hereto, if such
Mortgage Loan is modified so that it becomes a "qualified substitute mortgage
loan", such breach will be cured and the Seller will not be obligated to
repurchase or otherwise remedy such breach.
(c) The Pooling and Servicing Agreement shall provide that the
Trustee (or the applicable Master Servicer or the applicable Special Servicer on
its behalf) shall give written notice within three Business Days to the Seller
of its discovery of any Material Document Defect or Material Breach and prompt
written notice to the Seller in the event that any Mortgage Loan becomes a
Specially Serviced Mortgage Loan (as defined in the Pooling and Servicing
Agreement).
(d) If the Seller repurchases any Mortgage Loan pursuant to this
Section 5, the Purchaser or its assignee, following receipt by the Trustee of
the Purchase Price therefor, promptly shall deliver or cause to be delivered to
the Seller all Mortgage Loan documents with respect to such Mortgage Loan, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner such that the Seller shall be vested with legal and beneficial title to
such Mortgage Loan, in each case without recourse, including any property
acquired in respect of such Mortgage Loan or proceeds of any insurance policies
with respect thereto.
Section 6. Closing. The closing of the sale of the Mortgage Loans
shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:00 a.m., New York time, on the Closing
Date.
The obligation of the Seller and the Purchaser to close shall be
subject to the satisfaction of each of the following conditions on or prior to
the Closing Date:
(a) All of the representations and warranties of the Seller and the
Purchaser specified in Section 4 of this Agreement (including, without
limitation, the representations and warranties set forth on Exhibit 2 to this
Agreement) shall be true and correct as of the Closing Date, provided that any
representations and warranties made as of a specified date shall be true and
correct as of such specified date.
(b) All Closing Documents specified in Section 7 of this Agreement,
in such forms as are agreed upon and reasonably acceptable to the Seller or the
Purchaser, as applicable, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof.
(c) The Seller shall have delivered and released to the Purchaser or
its designee all documents required to be delivered to the Purchaser as of the
Closing Date pursuant to Section 2 of this Agreement.
(d) The result of the examination and audit performed by the
Purchaser and its affiliates pursuant to Section 3 hereof shall be satisfactory
to the Purchaser and its affiliates in their sole determination and the parties
shall have agreed to the form and contents of the Seller Information (as defined
in the Indemnification Agreement) to be disclosed in the Memorandum and the
Prospectus Supplement.
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with, and
the Seller and the 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.
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser pursuant to Section 8 hereof.
(g) 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.
(h) 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.
(i) The Seller shall have received the purchase price for the
Mortgage Loans pursuant to Section 1 hereof.
Each party agrees to use its best efforts to perform its respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
Section 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller.
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and its successors and assigns may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects 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) the 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.
(c) True, complete and correct copies of the Seller's certificate of
incorporation and bylaws.
(d) A certificate of existence for the Seller from the Secretary of
State of Ohio dated not earlier than 30 days prior to the Closing Date.
(e) A certificate of the Secretary or Assistant Secretary of the
Seller, dated the Closing Date, and upon which the Purchaser may rely, to the
effect that each individual who, as an officer or representative of the Seller,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures.
(f) An opinion of counsel (which, other than as to the opinion
described in paragraph (vi) below, may be in-house counsel) to the Seller, dated
the Closing Date, substantially to the effect of the following (with such
changes and modifications as the Purchaser may approve and subject to such
counsel's reasonable qualifications):
(i) The Seller is validly existing under Ohio law and has full
corporate power and authority to enter into and perform its obligations
under this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Seller.
(iii) No consent, approval, authorization or order of any federal
court or governmental agency or body is required for the consummation by
the Seller of the transactions contemplated by the terms of this Agreement
except any approvals as have been obtained.
(iv) Neither the execution, delivery or performance of this
Agreement by the Seller, nor the consummation by the 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 certificate of incorporation or bylaws of the 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 the Seller is a party or by which it or any of its assets is bound
or results in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument, other than pursuant to
this Agreement, or (C) 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 the Seller
or its assets, except where in any of the instances contemplated by
clauses (B) or (C) above, any conflict, breach or default, or creation or
imposition of any lien, charge or encumbrance, will not have a material
adverse effect on the consummation of the transactions contemplated hereby
by the Seller or materially and adversely affect its ability to perform
its obligations and duties hereunder or result in any material adverse
change in the business, operations, financial condition, properties or
assets of the Seller, or in any material impairment of the right or
ability of the Seller to carry on its business substantially as now
conducted.
(v) To his or her knowledge, there are no legal or governmental
actions, investigations or proceedings pending to which the Seller is a
party, or threatened against the Seller, (a) asserting the invalidity of
this Agreement or (b) which materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement.
(vi) This Agreement is a valid, legal and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
except as such enforcement may be limited by (1) laws relating to
bankruptcy, insolvency, reorganization, receivership 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, the
laws of the State of New York and the corporate laws of the State of Ohio, as
applicable.
(g) Such other opinions of counsel as any Rating Agency may request
in connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or the Seller's execution and delivery of, or performance under, this Agreement.
(h) A letter from Deloitte & Touche LLP, 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 the Seller.
(i) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
(j) An officer's certificate of the Purchaser, dated as of the
Closing Date, with the resolutions of the Purchaser authorizing the transactions
described herein attached thereto, together with certified copies of the
charter, by-laws and certificate of good standing of the Purchaser dated not
earlier than 30 days prior to the Closing Date.
(k) Such other certificates of the Purchaser's officers or others
and such other documents to evidence fulfillment of the conditions set forth in
this Agreement as the Seller or its counsel may reasonably request.
(l) An executed Xxxx of Sale in the form attached hereto as Exhibit
3.
Section 8. Costs. The Seller shall pay the Purchaser the costs and
expenses as agreed upon by the Seller and the Purchaser in a separate Letter of
Understanding dated November 15, 2007.
Section 9. Exchange Act Reporting Information. The Seller hereby
agrees to deliver to the Purchaser and the Paying Agent any disclosure
information relating to any event specifically related to the 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. The 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 the Paying Agent and the
Purchaser within one Business Day and in any event no later than two Business
Days of the Seller becoming aware of such event and shall provide disclosure
relating to any other event as required to be disclosed on Form 8-K, Form 10-D
or Form 10-K within two Business Days following the Purchaser's request for such
disclosure language. The obligation of the Seller to provide the
above-referenced disclosure materials will terminate upon notice or other
written confirmation from the Purchaser or the Paying Agent that the Paying
Agent 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. The 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.
Section 10. 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 the Purchaser, addressed to Xxxxxx Xxxxxxx Capital I
Inc., 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a
copy to Xxxxxxx Xxxxxx (or such other address as may hereafter be furnished in
writing by the Purchaser), or (ii) if to the Seller, addressed to the Seller at
Nationwide Life Insurance Company, Xxx Xxxxxxxxxx Xxxxx 0-00-00, Xxxxxxxx, Xxxx
00000, Attention: Xxxxxxx Xxxxxxx.
Section 11. 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 which prohibits or renders void or
unenforceable any provision hereof.
Section 12. Further Assurances. The Seller and the 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.
Section 13. 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 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.
Section 14. 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.
Section 15. Benefits of Mortgage Loan Purchase Agreement. This
Agreement shall inure to the benefit of and shall be binding upon the Seller,
the 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 (a) each Underwriter shall be a
third party beneficiary of the Seller's representations and warranties set forth
in Section 4(a)(vii) and (b) the rights and obligations of the Purchaser
pursuant to Sections 2, 4(a) (other than clause (vii)), 5, 11 and 12 hereof may
be assigned to the Trustee as may be required to effect the purposes of the
Pooling and Servicing Agreement and, upon such assignment, the Trustee shall
succeed to the rights and obligations hereunder of the 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.
Section 16. 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 the Seller under this Agreement shall not be assigned
by the Seller without the prior written consent of the Purchaser, except that
any person into which the Seller may be merged or consolidated, or any
corporation, limited liability company or other form of company resulting from
any merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to the entire business of the Seller shall be the successor to
the Seller hereunder.
Section 17. 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, 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 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.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXX XXXXXXX CAPITAL I INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
Mortgage Mortgage Loan
Loan No. Seller(1) Property Name(2) Cut-Off Date Balance(3) Street Address
------------------------------------------------------------------------------------------------------------------------------------
23 NLIC 000 Xxxxxxx Xxxxxx Apartments $23,250,000 000 Xxxxxxx Xxxxxx
00 XXXX Xxxxxxxx Xxxxxxx Shopping Center $12,700,000 0000 Xxxxx XX-00
54 NLIC Holiday Inn Hotel & Suites - Huntington $10,000,000 000 Xxxxx Xxxxxx
77 NLIC Jurupa Self Sufficiency Center $8,000,000 0000 Xxxxxxx Xxxxxxxxx
87 NLIC Silver Drive Warehouse $7,000,000 2561, 2601 and 0000 Xxxxxx Xxxxx
109 NLIC Shops at Onion Creek $5,300,000 00000 Xxxxx XX-00
000 XXXX The Baltic Inn $5,000,000 000 0xx Xxxxxx
000 XXXX Xxxxxxxx Village Shopping Center $3,750,000 0000-0000 Xxxxx Xxxxx Xxxxxx
Totals and Weighted Averages: $75,000,000
Mortgage
Loan No. City State Zip Code Note Date Maturity Date ARD Loan
------------------------------------------------------------------------------------------------------
23 Xxxxxx XX 00000 10/19/2007 11/01/2017 Xx
00 Xxxxxx XX 00000 08/27/2007 09/01/2017 No
00 Xxxxxxxxxx XX 00000 10/15/2007 11/01/2017 Xx
00 Xxxxxx XX 00000 09/05/2007 10/01/2017 Xx
00 Xxxxxxxx XX 00000 09/04/2007 10/01/2017 No
000 Xxxxxx XX 00000 09/21/2007 10/01/2017 No
000 Xxx Xxxxx XX 00000 09/07/2007 10/01/2017 No
147 Xxxxxx XX 00000 09/14/2007 10/01/2017 No
Mortgage
Loan No. Original Term to Maturity Remaining Term to Maturity Original Amort. Term(9) Mortgage Rate
------------------------------------------------------------------------------------------------------------------------------------
23 120 120 420 6.540%
41 120 118 360 6.280%
54 120 120 300 6.580%
77 120 119 360 5.940%
87 120 119 360 5.670%
109 120 119 360 6.240%
116 120 119 IO 6.230%
147 120 119 360 6.290%
120 119 360 6.221%
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
None
SCHEDULE A
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
LISTED IN EXHIBIT 2 REGARDING INDIVIDUAL MORTGAGE LOANS
None
SCHEDULE B
LIST OF MORTGAGORS THAT ARE
THIRD-PARTY BENEFICIARIES UNDER SECTION 5(b)
None
EXHIBIT 3
XXXX OF SALE
1. Parties. The parties to this Xxxx of Sale are the following:
Seller: Nationwide Life Insurance Company
Purchaser: Xxxxxx Xxxxxxx Capital I Inc.
2. Sale. For value received, the Seller hereby conveys to the
Purchaser, without recourse, all right, title and interest in and to the
Mortgage Loans identified on Exhibit 1 (the "Mortgage Loan Schedule") to the
Mortgage Loan Purchase Agreement, dated as of November 1, 2007 (the "Mortgage
Loan Purchase Agreement"), between the Seller and the Purchaser and all of the
following property:
(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.
3. Purchase Price. $_____ (including accrued interest).
4. Definitions. Terms used but not defined herein shall have the
meanings assigned to them in the Mortgage Loan Purchase Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx
of Sale to be duly executed and delivered on this __ day of November 2007.
SELLER: NATIONWIDE LIFE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
PURCHASER: XXXXXX XXXXXXX CAPITAL I INC.
By: ___________________________________
Name:
Title:
EXHIBIT 4
FORM OF LIMITED POWER OF ATTORNEY
THIS DOCUMENT PREPARED BY,
AND AFTER RECORDING RETURN TO:
Xxxxx Fargo Bank, National Association
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxx, Xxxxxxxxxx 00000
Centerline Servicing Inc.
0000 Xxxxx X'Xxxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services--MS 2007-IQ16
LIMITED POWER OF ATTORNEY
Know all persons by these presents; that the undersigned in its capacity
as Seller, having an address of 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx (the "Seller"), being duly empowered and authorized to
do so, does hereby make, constitute and appoint Xxxxx Fargo Bank, National
Association, having an address of 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (the "Master Servicer"), Centerline Servicing Inc., having an
address of 0000 Xxxxx X'Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxx X.
Xxxxx (the "Special Servicer"), and LaSalle Bank National Association, having an
address of 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Global Securities and Trust Services--MS 2007-IQ16 (the "Trustee"),
as the true and lawful attorneys-in-fact for the undersigned, in its name, place
and stead, and for its use and benefit:
1. To empower the Trustee, the Master Servicer and, in the event of the
failure or incapacity of the Trustee and the Master Servicer, the Special
Servicer, to submit for recording, at the expense of the Seller, any mortgage
loan documents required to be recorded as described in the Pooling and Servicing
Agreement, dated as of November 1, 2007 (the "Pooling and Servicing Agreement"),
among Xxxxxx Xxxxxxx Capital I Inc., as Depositor, the Master Servicer, the
Capmark Master Servicer, the NCB Master Servicer, the Special Servicer, the
Co-op Special Servicer, the Trustee and the Paying Agent with respect to the
Trust and any intervening assignments with evidence of recording thereon that
are required to be included in the Mortgage File (so long as original
counterparts have previously been delivered to the Trustee).
2. This power of attorney shall be limited to the above-mentioned exercise
of power.
3. This instrument is to be construed and interpreted as a limited power
of attorney. The enumeration of specific items, rights, acts or powers herein is
not intended to, nor does it give rise to, and it is not intended to be
construed as, a general power of attorney.
4. The rights, power of authority of said attorney herein granted shall
commence and be in full force and effect on the date hereof and such rights,
powers and authority shall remain in full force and effect until the termination
of 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.
IN WITNESS WHEREOF, I have hereunto set my hand this __ day of November
2007.
Witnessed by: NATIONWIDE LIFE INSURANCE COMPANY
___________________________ By:________________________
Print Name: Name:
Title:
STATE OF______________________)
COUNTY OF_____________________)
On __________________________, before me, a Notary Public in and for
said county, personally appeared ________________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he/she executed the same in his/her authorized capacity, and that by
his/her signature on the instrument the person acted and executed the
instrument. Witness my hand and official seal.
____________________________________
Commission Expires:
