MORGAN STANLEY CAPITAL I INC. as Purchaser and MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC as Seller MORTGAGE LOAN PURCHASE AGREEMENT Dated as of July 1, 2007 Fixed-Rate Mortgage Loans Morgan Stanley Mortgage Loan Trust 2007-12, Mortgage Pass-Through...
EXHIBIT
99.4
EXECUTION
VERSION
▇▇▇▇▇▇
▇▇▇▇▇▇▇ CAPITAL I INC.
as
Purchaser
and
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC
as
Seller
Dated
as
of July 1, 2007
Fixed-Rate
Mortgage Loans
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-12,
Mortgage
Pass-Through Certificates, Series 2007-12
Table
of Contents
Page
|
ARTICLE
I. DEFINITIONS
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||
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Section
1.01.
|
Definitions
|
1
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ARTICLE
II. SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE
PRICE
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Section
2.01.
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Sale
and Assignment of Mortgage Loans.
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2
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Section
2.02.
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Recognition
of Trustee
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2
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Section
2.03.
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Obligations
of Seller Upon Sale
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2
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Section
2.04.
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Payment
of Purchase Price for the Mortgage Loans
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4
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ARTICLE
III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR
BREACH
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||
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Section
3.01.
|
Seller
Representations and Warranties Relating to the Mortgage
Loans
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4
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Section
3.02.
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Seller
Representations and Warranties
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11
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ARTICLE
IV. SELLER’S COVENANTS
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Section
4.01.
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Covenants
of the Seller
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13
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ARTICLE
V. INDEMNIFICATION WITH RESPECT TO THE SELLER
INFORMATION
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Section
5.01.
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Indemnification
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13
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ARTICLE
VI. TERMINATION
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Section
6.01.
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Termination
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16
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ARTICLE
VII. MISCELLANEOUS PROVISIONS
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Section
7.01.
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Amendment
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16
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Section
7.02.
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Governing
Law
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16
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Section
7.03.
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Notices
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16
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Section
7.04.
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Severability
of Provisions
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17
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Section
7.05.
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Counterparts
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17
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Section
7.06.
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Further
Agreements
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17
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Section
7.07.
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Intention
of the Parties
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17
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Section
7.08.
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Successors
and Assigns: Assignment of Purchase Agreement
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18
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Section
7.09.
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Survival
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18
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Schedule
I – Mortgage Loan
Schedule I-1
i
EXECUTION
VERSION
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of July 1, 2007 (the “Agreement”), between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC (the “Seller” or “MSMCH”) and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC. (the “Purchaser”).
WITNESSETH:
WHEREAS,
the Seller is the owner of either the notes or other evidence of indebtedness
(the “Mortgage Notes”) or other evidence of ownership so indicated on Schedule I
hereto referred to below, and the other documents or instruments constituting
the Mortgage File (collectively, the “Mortgage Loans”); and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing such Mortgage Loans, including
rights to (a) any property acquired by foreclosure or deed in lieu of
foreclosure or otherwise and (b) the proceeds of any insurance policies covering
the Mortgage Loans or the Mortgaged Properties or the obligors on the Mortgage
Loans; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans to the
Purchaser and the Purchaser purchase the Mortgage Loans from the Seller pursuant
to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement dated as of July
1,
2007 (the “Pooling and Servicing Agreement”) among the Purchaser, as depositor,
▇▇▇▇▇ Fargo Bank, National Association, as master servicer and securities
administrator, and LaSalle Bank National Association, as trustee (the
“Trustee”), the Purchaser will convey the Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Loan Trust 2007-12 (the “Trust”).
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
Section
1.01 Definitions. All capitalized terms used but not defined
herein and below shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
“Seller
Information”: The information set forth in the Prospectus
Supplement or the Free Writing Prospectus under the caption: “Description of the
Mortgage Loans—Loan Purchasing Guidelines and Underwriting Standards”, “—Loan
Purchasing Guidelines—▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.”
ARTICLE
II.
SALE
OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale and Assignment of Mortgage
Loans.
(a) On
and of the date hereof, MSMCH hereby sells, assigns and transfers to the
Depositor all of its right, title and interest in the Mortgage Loans and all
rights and obligations related thereto as provided under the Agreement to the
extent relating to the Mortgage Loans, the Depositor hereby accepts such
assignment from MSMCH (the “First Assignment and Assumption”), and the Seller
hereby acknowledges the First Assignment and Assumption.
(b) On
and of the date hereof, immediately after giving effect to the First Assignment
and Assumption, the Depositor hereby sells, assigns and transfers to the
Trustee, on behalf of the Trust, all of its right, title and interest in the
Mortgage Loans and all rights and obligations related thereto, and the Trustee,
on behalf of the Trust, hereby accepts such assignment from the Depositor (the
“Second Assignment and Assumption”), and the Seller hereby acknowledges the
Second Assignment and Assumption.
(c) On
and as of the date hereof, MSMCH represents and warrants to the Depositor and
the Trustee that MSMCH has not taken any action that would serve to impair
or
encumber the respective ownership interests of the Depositor and the Trustee
in
the Mortgage Loans since the date of MSMCH’s acquisition of the Mortgage
Loans.
Section
2.02 Recognition of Trustee
(a) From
and after the date hereof, both MSMCH and the Depositor shall note the transfer
of the Mortgage Loans to the Trustee, in their respective books and records
and
shall recognize the Trustee, on behalf of the Trust, as of the date hereof,
as
the owner of the Mortgage Loans, and Servicer shall service the Mortgage Loans
for the benefit of the Trust pursuant to the Agreement, the terms of which
are
incorporated herein by reference. It is the intention of the
Servicer, the Depositor, the Trustee and MSMCH that this Assignment shall be
binding upon and inure to the benefit of the Depositor, the Trustee and MSMCH
and their respective successors and assigns.
(b) Without
in any way limiting the foregoing, the parties confirm that this Assignment
includes the rights relating to amendments or waivers under the
Agreement. Accordingly, the right of MSMCH to consent to any
amendment of the Agreement and its rights concerning waivers as set forth in
Section 12.02 of the Agreement shall be exercisable, to the extent any such
amendment or waiver affects the Mortgage Loans or any of the rights under the
Agreement with respect thereto (other than the servicing of the Mortgage Loans,
which shall be enforced by the Master Servicer) by the Trustee as assignee
of
MSMCH.
Section
2.03 Obligations of Seller Upon Sale.
(a)
In connection with any transfer
pursuant to Section 2.01 hereof, the Seller further agrees, at its own expense,
on or prior to the Closing Date, (x) to indicate in its books and
2
records
that the Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement and (y) to deliver to the Purchaser and the Trustee a computer file
containing a true and complete list of all such Mortgage Loans specifying for
each such Mortgage Loan, as of the Cut-off Date, its account number and Cut-off
Date Principal Balance. Such file, which forms a part of Schedule A
to the Pooling and Servicing Agreement, shall also be marked as Schedule I
to
this Agreement and is hereby incorporated into and made a part of this
Agreement.
In
connection with such transfer and assignment of the Mortgage Loans, the Seller
shall, on behalf of the Purchaser, deliver to and deposit with, the Custodian,
as the agent of the Trustee, the documents or instruments set forth in Section
2.01(a) of the Pooling and Servicing Agreement with respect to each Mortgage
Loan so transferred and assigned.
If
any of
the documents referred to above has as of the Closing Date been submitted for
recording but either (x) has not been returned from the applicable public
recording office or (y) has been lost or such public recording office has
retained the original of such document, the obligations of the Seller to deliver
such documents shall be deemed to be satisfied upon (1) delivery to the
Custodian no later than the Closing Date, of a copy of each such document
certified by the Seller in the case of (x) above or the applicable public
recording office in the case of (y) above to be a true and complete copy of
the
original that was submitted for recording and (2) if such copy is certified
by
the Seller, delivery to the Custodian, promptly upon receipt thereof of either
the original or a copy of such document certified by the applicable public
recording office to be a true and complete copy of the original. If
the original lender’s title insurance policy on a Mortgage Loan was not
delivered as required by this Section 2.01, the Seller shall deliver or cause
to
be delivered to the Custodian, a written commitment or interim binder or
preliminary report of title issued by the title insurance or escrow company,
with the original to be delivered to the Custodian, promptly upon receipt
thereof. The Seller shall deliver or cause to be delivered to the
Custodian promptly upon receipt thereof any other original documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Seller shall have 90 days
to
cure such defect or deliver such missing document to the Trustee. If
the Seller does not cure such defect or deliver such missing document within
such time period, the Seller shall either repurchase or substitute for such
Mortgage Loan in accordance with Section 2.05 of the Pooling and Servicing
Agreement.
The
Purchaser hereby acknowledges its acceptance of all right, title and interest
to
the Mortgage Loans and other property, now existing and hereafter created,
conveyed to it pursuant to Section 2.01.
The
parties hereto intend that the transaction set forth herein be a sale by the
Seller to the Purchaser of all the Seller’s right, title and interest in and to
the Mortgage Loans and other property described above. In the event
the transaction set forth herein is deemed not to be a sale, the Seller hereby
grants to the Purchaser a security interest in all of the Seller’s right, title
and interest in, to and under the Mortgage Loans and other property described
above, whether
3
now
existing or hereafter created, to secure all of the Seller’s obligations
hereunder; and this Agreement shall constitute a security agreement under
applicable law. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Pooling and Servicing Agreement.
Section
2.04 Payment of Purchase Price for the Mortgage Loans. In
consideration of the sale of the Mortgage Loans from the Seller to the Purchaser
on the Closing Date, the Purchaser agrees to pay to the Seller on the Closing
Date by transfer of immediately available funds, as directed by the Seller,
an
amount equal to $516,179,004 in respect of the Mortgage Loans (the “Purchase
Price”).
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Seller Representations and Warranties Relating to the
Mortgage Loans. The Seller hereby represents and warrants to the Purchaser,
with respect to the Mortgage Loans, that as of the Closing Date or as of such
date specifically provided herein:
(a) The
information set forth in the Mortgage Loan Schedule is complete, true and
correct in all material respects as of the Cut-off Date.
(b) Seller
is the sole owner and holder of the Mortgage Loans free and clear of any liens,
pledges, except for the pledge of the Mortgage note by Seller with a warehouse
lender disclosed to Purchaser, charges or security interest of any nature,
and
has full right and authority to sell and assign the same.
(c) With
respect to each Mortgage Loan that is not a Co-op Loan, the Mortgage is a valid,
existing and enforceable first (or, if indicated by Seller, second) lien on
the
Mortgaged Property, including all improvements on the Mortgaged Property subject
only to (i) the lien of current real property taxes and assessments not yet
due
and payable, (ii) covenants, conditions and restrictions, rights of way,
easements and other matters of the public record as of the date of recording
being acceptable to Mortgage lending institutions generally and specifically
referred to in the owner’s title insurance policy delivered to the originator of
the Mortgage Loan and (x) specifically referred to or otherwise considered
in
the appraisal made for the originator of the Mortgage Loan or (y) which do
not
adversely affect the appraised value of the Mortgaged Property (or underlying
Mortgaged Property (or underlying Mortgaged Property, in the case of a Co-op
Loan), (iii) other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended to be
provided by the Mortgage or the use, enjoyment, value or marketability of the
related Mortgaged Property (or underlying Mortgaged Property, in the case of
a
Co-op Loan) (iv) with respect to a second lien only, the lien of the first
mortgage on the related mortgaged property. Any security agreement, chattel
Mortgage or equivalent document related to and delivered in connection with
the
Mortgage loan establishes and creates a valid, existing and enforceable first
(or, if indicated by Seller, second)
4
lien
and
first (or if indicated by Seller, second) priority security interest on the
property described therein and the Seller has the full right to sell and assign
the same to Purchaser. With respect to each Co-op Loan, the related Mortgage
is
a valid, subsisting and enforceable first priority security interest on the
related cooperative shares securing the Mortgage note, subject only to (i)
liens
of the related residential cooperative housing corporation for unpaid
assessments representing the borrower’s pro rata share of the related
residential cooperative housing corporation’s payment for its blanket Mortgage,
current and future real property taxes, insurance premiums, maintenance fees
and
other assessments to which like collateral is commonly subject and (ii) other
matters to which like collateral is commonly subject to which do not materially
interfere with the benefits of the security interest intended to be provided
by
the related security agreement.
(d) The
Mortgage Loan is not in default and all monthly payments due prior to the
transaction have been paid and all taxes, assessments and insurance premiums,
water, sewer and municipal charges, leasehold payments or ground rents relating
to the property secured by the Mortgage Loan have been paid. Seller has not
advanced funds or induced or solicited any advances or funds by a party other
than a borrower directly or indirectly, for the payment of any amounts required
by the Mortgage loans.
(e) With
respect to escrow deposits and escrow payments, all such payments are in the
possession of Seller and there exist no deficiencies in connection therewith
for
which customary arrangements for repayment thereof have not been
made.
(f) The
terms of the Mortgage Note and Mortgage have not been impaired, waived, altered
or modified in any respect from the date of origination, except by a written
instrument which has been recorded, if necessary to protect the interest of
Purchaser, and which has been delivered to Purchaser or to such other person
as
Purchaser shall designate in writing. The substance of any such waiver,
alteration or modification has been approved by the issuer of any related
private mortgage insurance policy and the title insurer, if any, to the extent
required by the policy. No borrower has been released, in whole or in part,
except in connection with an assumption agreement, approved by the issuer of
any
related private mortgage insurance policy and the title insurer, to the extent
required by the policy, and which assumption agreement is part of the mortgage
file delivered to Purchaser or to such other person as Purchaser shall designate
in writing.
(g) The
Mortgage Loan is not subject to any right of rescission, set-off, counter claim
or defense and is not unenforceable under any terms. The Mortgage note, the
Mortgage and any other agreement executed and delivered by a borrower or
guarantor, if applicable, are genuine, legal, valid, binding and enforceable
obligations of the maker thereof. All parties to the Mortgage note and any
other
agreement executed and delivered by a borrower or guarantor, if applicable,
had
legal capacity to execute such documents and all such documents have, in fact,
been properly executed by such parties.
(h) The
Mortgage Loan has not been satisfied, cancelled, subordinated or rescinded,
in
whole or in part (other than as to principal prepayments in full which may
have
been received prior to the transaction date), and the Mortgaged Property has
not
been released
5
from
the
lien of the Mortgage, in whole or in part, nor has any instrument been executed
that would effect any such satisfaction, cancellation, subordination, rescission
or release.
(i) The
Mortgaged Property (or underlying Mortgaged Property, in the case of a Co-op
Loan) and all improvements thereon are insured against loss by fire and other
such hazards as are customary in the area where the Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan) is located. Such
coverage shall contain fire and hazard insurance policy with extended coverage
as called for under the Seller’s guide. Such insurance policy and any other
insurance policy related to the Mortgage Loan or the Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan) contains a standard
Mortgagee clause naming Seller and its successors and assigns as Mortgagee
and
loss payee. Each Mortgage obligates the borrower there under to maintain such
insurance at their costs and expense and allows the Mortgagee to obtain and
maintain such insurance at borrower’s costs and expense, and to seek
reimbursement from the borrower should there be any failure by the borrower
to
maintain such policy. If any flood insurance is required by applicable law
or
pursuant to the Mortgage Loan documents or any other applicable requirement,
then it has been obtained and in full force and effect. Any statements made
by
the borrower or the Seller in applications for such policies were true, complete
and correct at the time the application was made and there are no events that
have occurred since that policy was issued that would affect the stated coverage
of the policy.
(j) Any
and all requirements of any federal, state or local law which include, but
are
not limited to usury, truth-in-lending, real estate settlement procedures,
disclosure laws, consumer credit protection and equal credit opportunity have
been complied with.
(k) The
proceeds of the Mortgage Loan have been fully disbursed and there is no
requirement or anticipation of future advances there under (other than any
escrow holdbacks retained pursuant to the terms of a related construction loan).
All costs, fees and expenses incurred in making, closing or recording the
Mortgage Loan have been paid.
(l) Each
Mortgage Loan that is not a Co-op Loan is covered by an ALTA lender’s title
insurance policy or other generally acceptable form of policy, or with respect
to any mortgage loan for which the related mortgaged property is located in
California, a CLTA lender’s title insurance policy, or insurance acceptable to
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, issued by a title insurer acceptable to ▇▇▇▇▇▇ Mae
or
▇▇▇▇▇▇▇ Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in paragraph
(c) above) the Seller, its successors and assigns, as to the first (or, if
indicated by Seller, second) priority lien of the Mortgage in the original
principal amount of the Mortgage Loan, subject only to the exceptions contained
in clauses (i), (ii), (iii) and (iv) of paragraph (c) of this Section 3.01,
and
in this case of adjustable rate mortgage loans, against any loss by reason
of
the invalidity or unenforcability of the lien resulting from the provisions
of
the mortgage providing for adjustment to the mortgage interest rate and monthly
payment. Where required by applicable state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. The Seller, its successors and assigns, are
the sole insureds of such lender’s title insurance policy and such lender’s
title insurance policy is in full force and effect and will be in full force
and
effect upon the consummation
of the transactions contemplated by this Agreement. No claims have
been made
6
under
such lender’s title insurance policy, and no prior holder of the related
Mortgage, including the Seller, has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy.
(m) There
is no default, breach, violation, anticipated breach or event of acceleration
existing under the Mortgage or the related Mortgage Note and no existing or
known event which, with the passage of time, (or with notice and the expiration
of any grace or cure period) would constitute a default, breach, violation
or
event of acceleration under such Mortgage or the related Mortgage
Note.
(n) At
settlement of the Mortgage Loan, and, to the Seller’s knowledge as of the
transaction date, there were no mechanic’s liens or claims for work, labor or
material affecting the Mortgaged Property (or the related residential dwelling
unit at the underlying mortgaged property, in the case of a Co-op Loan) which
are or may be a lien prior to the lien of such Mortgage except those which
are
insured against by the title insurance policy.
(o) With
respect to each mortgage loan, which is not a Co-op Loan, all improvements
subject to the Mortgage which were considered in determining the appraised
value
of the Mortgaged Property lie wholly within the boundaries and building
restriction lines of the Mortgaged Property except for de minimis encroachments
permitted by the ▇▇▇▇▇▇ ▇▇▇ Guide and which have been noted on the appraisal
or
the title policy affirmatively insures against loss or damage by reason of
any
violation, variation or encroachment or adverse circumstance which is either
disclosed or would have been disclosed by an accurate survey, and no
improvements on adjoining properties encroach upon the Mortgaged Property except
those which are insured against by the title insurance policy referred to in
clause (m) above or are acceptable under ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac guidelines
and all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances.
(p) Except
for approximately 0.06% of the Mortgage Loans, by aggregate stated principal
balance as of the Cut-off Date, each Mortgage Loan substantially complies with
all the terms, conditions and requirements of Seller’s standards in effect at
the time of origination of such Mortgage Loan. With respect to the
remaining Mortgage Loans, each such Mortgage Loan complies with all the terms,
conditions and requirements of the related originator’s standards in effect at
the time of origination of such Mortgage Loan. The Mortgage Notes and
Mortgages (exclusive of any riders) are on forms generally acceptable to ▇▇▇▇▇▇
Mae or ▇▇▇▇▇▇▇ Mac.
(q) The
Mortgaged Property is not subject to any material damage by waste, fire,
earthquake, windstorm, flood or other casualty. At origination of the
Mortgage Loan there was, and there currently is, no proceeding pending for
the
total or partial condemnation of the Mortgaged Property. To the best
of the Seller’s knowledge there are no such proceedings scheduled to commence at
a future date.
(r) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for
the
realization against the Mortgaged Property (or underlying Mortgaged Property,
in
the case
of a
Co-op Loan) of the benefits of the security provided thereby, including (i)
in
the case of
7
a
Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by
judicial foreclosure. Following the date of origination of the Mortgage Loan,
the Mortgaged Property (or underlying Mortgaged Property, in the case of a
Co-op
Loan) has not been subject to any bankruptcy proceeding or foreclosure
proceeding and the borrower has not filed for protection under applicable
bankruptcy laws.
(s) Seller
has used no selection procedure in soliciting or selecting the Mortgage Loans
to
be sold to Purchaser or in the solicitation of borrowers which is in violation
of law.
(t) Unless
otherwise set forth on the Mortgage Loan Schedule, the Mortgage Loan does not
contain provisions pursuant to which monthly payments are paid or partially
paid
with funds deposited in any separate account established by the Seller, the
borrower, or anyone on behalf of the borrower, or paid by any source other
than
the borrower nor does it contain any other similar provisions which may
constitute a “buydown” provision. The Mortgage Loan is not a graduated payment
Mortgage Loan and the Mortgage Loan does not have a shared appreciation or
other
contingent interest feature.
(u) Each
Mortgage Note requires a monthly payment which is sufficient to amortize fully
the original principal balance over the original term thereof and to pay
interest at the related Mortgage Interest Rate. No Mortgage Loan contains terms
or provisions which would result in negative amortization.
(v) If
required by specific loan programs, a Mortgage Loan with an LTV greater than
80%
is and will be insured as to payment defaults by a Primary Mortgage Insurance
Policy issued by a Qualified Insurer. All provisions of such Primary
Mortgage Insurance Policy have been and are being complied with, such policy
is
in full force and effect, and all premiums due thereunder have been
paid. No action, inaction, or event has occurred and no state of
facts exists that has, or will result in the exclusion from, denial of, or
defense to coverage. Any Mortgage Loan subject to a Primary Mortgage
Insurance Policy obligates the Mortgagor thereunder to maintain the Primary
Mortgage Insurance Policy and to pay all premiums and charges in connection
therewith.
(w) Each
Mortgaged Property is improved by a one- to four-family residential dwelling
including condominium units. dwelling units in PUDs and cooperatives, which,
to
the best of the Seller’s knowledge, does not include mobile homes and, except if
the Mortgage Loan is a Co-op Loan, does not constitute other than real property
under state law.
(x) No
action has been taken or failed to be taken by the Seller on or prior to the
Closing Date which has resulted or will result in an exclusion from, denial
of,
or defense to coverage under any Primary Mortgage Insurance Policy (including,
without limitation, any exclusions, denials or defenses which would limit or
reduce the availability of the timely payment of the full amount of the loss
otherwise due thereunder to the insured).
(y) The
origination, servicing and collection practices with respect to the Mortgage
Loan have been in all material respects in accordance with accepted
mortgage
8
servicing
practices of prudent lending institutions, applicable laws and regulations,
and
have been in all material respects legal and proper.
(z) Each
Mortgage Loan was originated (within the meaning of Section 3(a)(41) of the
Securities Exchange Act of 1934, as amended) by an entity that satisfied at
the
time of origination the requirements of Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended.
(aa) Any
leasehold estate securing a Mortgage Loan has a term of not less than five
years
in excess of the term of the related Mortgage Loan.
(bb) The
Mortgage Loan documents contain an appraisal of the related Mortgaged Property
by an appraiser who had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof; and whose compensation
was
not affected by the approval or disapproval of the Mortgage Loan, and the
appraisal and/or the appraiser satisfy the applicable requirements or minimum
qualifications of FIRREA, ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac, as applicable.
(cc) Each
Mortgage Loan constitutes a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code.
(dd) No
Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act.
(ee) None
of the Mortgage Loans is a “high cost” loan as defined by applicable predatory
and abusive lending laws.
(ff) None
of the Mortgage Loans is covered by the Home Ownership and Equity Protection
Act
of 1994 (“HOEPA”).
(gg) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et
seq.).
(hh) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇. §§ 58-21a-1 et
seq.).
(ii) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and with
respect to the foregoing, the terms "High Cost Loan" and "Covered Loan" have
the
meaning assigned to them in the then current version of Standard & Poor’s
LEVELS®, which is now Version 5.7 Glossary Revised, Appendix E (the "Glossary")
which is attached as Exhibit Q to the Pooling and Servicing Agreement where
(x)
a "High Cost Loan" is each loan identified in the column "Category under
applicable anti-predatory lending law" of the table entitled "Standard &
Poor's High Cost Loan Categorization" in the Glossary as each such loan is
defined in the applicable anti-predatory lending law of the State or
jurisdiction specified in such table and (y) a "Covered Loan" is each loan
identified in the column "Category under applicable anti-predatory lending
law"
of the table entitled "Standard & Poor's High Covered Loan
9
Categorization"
in the Glossary as each such loan is defined in the applicable anti-predatory
lending law of the State or jurisdiction specified in such table.
(jj) In
connection with the origination of the Mortgage Loan, no proceeds from such
Mortgage Loan were used to finance or acquire a single-premium credit life
insurance policy, credit disability, credit unemployment or credit property
insurance policy.
(kk) Each
Mortgage Loan that is subject to a prepayment penalty as provided in the related
Mortgage Note is identified on the related Mortgage Loan Schedule. No
such Prepayment Penalty may be imposed for a term in excess of five (5) years
following origination.
(ll) As
to each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller to the Purchaser,
that Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser and the Purchaser is not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage. With respect to each Mortgage Loan the Seller has
caused to be fully furnished, in accordance with the Fair Credit Reporting
Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company (three of the credit repositories),
on a
monthly basis.
(mm) No
Mortgagor with respect to any Mortgage Loan originated on or after August 1,
2004 agreed to submit to arbitration to resolve any dispute arising out of
or
relating in any way to the mortgage loan transaction.
With
respect to the representations and warranties set forth in this Section 3.01
that are made to the best of the Seller's knowledge or as to which the Seller
has no knowledge, if it is discovered by the Depositor, the Seller, the Servicer
or the Trustee as set forth in Section 2.05 of the Pooling and Servicing
Agreement that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interest therein of the Purchaser or the Purchaser's
assignee, transferee or designee then, notwithstanding the Seller's lack of
knowledge with respect to the substance of such representation and warranty
being inaccurate at the time the representation or warranty was made, such
inaccuracy shall be deemed a breach of the applicable representation or
warranty.
Upon
discovery by the Depositor, the Seller, the Servicer, the Purchaser or any
assignee, transferee or designee of the Purchaser of a breach of any of the
representations and warranties contained in this Article III or Section 2.05
of
the Pooling and Servicing Agreement that materially and adversely affects the
value of any Mortgage Loan or the interest therein of the Purchaser or the
Purchaser’s assignee, transferee or designee, the party discovering the breach
shall give prompt written notice to the others. Within 90 days of its
discovery or its receipt of notice of any such missing or materially defective
documentation or any such breach of a representation or warranty, the Seller
shall promptly deliver such missing document or cure such defect or breach
in
all material respects, or in the event such defect or breach cannot be cured,
the Seller shall repurchase the affected Mortgage Loan or cause the removal
of
such Mortgage
10
Loan
from
the Trust Fund and substitute for it one or more Eligible Substitute Mortgage
Loans, in either case, in accordance with Section 2.05 of the Pooling and
Servicing Agreement.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 3.01 shall survive delivery of the respective Mortgage Files to the
Trustee on behalf of the Purchaser.
It
is
understood and agreed that the obligations of the Seller set forth in this
Section 3.01 to cure, repurchase or substitute for a defective Mortgage Loan
constitutes the sole remedy of the Purchaser respecting a missing or defective
document or a breach of the representations or warranties contained in this
Section 3.01.
Section
3.02 Seller Representations and Warranties. The Seller
hereby represents and warrants to the Purchaser that as of the Closing Date
or
as of such date specifically provided herein:
(i) The
Seller is duly organized, validly existing and in good standing as a limited
liability company under the laws of the State of New York and has the power
and
authority to own its assets and to transact the business in which it is
currently engaged. The Seller is duly qualified to do business and is
in good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such qualification
and in which the failure to so qualify would have a material adverse effect
on
(a) its business, properties, assets or condition (financial or other), (b)
the
performance of its obligations under this Agreement, (c) the value or
marketability of the Mortgage Loans, or (d) its ability to foreclose on the
related Mortgaged Properties.
(ii) The
Seller has the power and authority to make, execute, deliver and perform this
Agreement and to consummate all of the transactions contemplated hereunder
and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. When executed and delivered, this
Agreement will constitute the Seller’s legal, valid and binding obligations
enforceable in accordance with its terms, except as enforcement of such terms
may be limited by (1) bankruptcy, insolvency, reorganization, receivership,
moratorium or similar laws affecting the enforcement of creditors’ rights
generally and by the availability of equitable remedies, (2) general equity
principals (regardless of whether such enforcement is considered in a proceeding
in equity or at law) or (3) public policy considerations underlying the
securities laws, to the extent that such policy considerations limit the
enforceability of the provisions of this Agreement which purport to provide
indemnification from securities laws liabilities.
(iii) The
Seller holds all necessary licenses, certificates and permits from all
governmental authorities necessary for conducting its business as it is
presently conducted, except for such licenses, certificates and permits the
absence of which, individually or in the aggregate, would not have a material
adverse effect on the ability of the Seller to conduct its business as it is
presently conducted. It is not required to obtain the consent of any
other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consents, licenses,
11
approvals
or authorizations, or registrations or declarations as shall have been obtained
or filed, as the case may be, prior to the Closing Date.
(iv) The
execution, delivery and performance of this Agreement by the Seller will not
conflict with or result in a breach of, or constitute a default under, any
provision of any existing law or regulation or any order or decree of any court
applicable to the Seller or any of its properties or any provision of its
articles of organization, operating agreement, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or encumbrance
upon any of its properties pursuant to any mortgage, indenture, contract or
other agreement to which it is a party or by which it may be bound.
(v) No
certificate of an officer, written statement or report delivered pursuant to
the
terms hereof by the Seller contains any untrue statement of a material fact
or
omits to state any material fact necessary to make the certificate, statement
or
report not misleading.
(vi) The
transactions contemplated by this Agreement are in the ordinary course of the
Seller’s business.
(vii) The
Seller is not insolvent, nor will the Seller be made insolvent by the transfer
of the Mortgage Loans, nor is the Seller aware of any pending
insolvency.
(viii) The
Seller is not in violation of, and the execution and delivery of this Agreement
by it and its performance and compliance with the terms of this Agreement will
not constitute a violation with respect to any order or decree of any court,
or
any order or regulation of any federal, state, municipal or governmental agency
having jurisdiction, which violation would materially and adversely affect
the
Seller’s condition (financial or otherwise) or operations or any of the Seller’s
properties, or materially and adversely affect the performance of any of its
duties hereunder.
(ix) There
are no actions or proceedings against, or investigations of, the Seller pending
or, to its knowledge, threatened, before any court, administrative agency or
other tribunal (i) that, if determined adversely, would prohibit the Seller
from
entering into this Agreement and the Pooling and Servicing Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s performance of any of its
respective obligations under, or the validity or enforceability of, this
Agreement and the Pooling and Servicing Agreement.
(x) The
Seller is not transferring the Mortgage Loans to the Purchaser hereunder with
any intent to hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice of
any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller pursuant to this Agreement are not subject to the bulk transfer
laws
or any similar statutory provisions in effect in any applicable
jurisdiction.
12
ARTICLE
IV.
SELLER’S
COVENANTS
Section
4.01 Covenants of the Seller.
(a)
The Seller hereby covenants that
except for the transfer hereunder, the Seller will not sell, pledge, assign
or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist
any lien on any Mortgage Loan, or any interest therein; the Seller will notify
the Trustee, as assignee of the Purchaser, of the existence of any lien on
any
Mortgage Loan immediately upon discovery thereof, and the Seller will defend
the
right, title and interest of the Trust, as assignee of the Purchaser, in, to
and
under the Mortgage Loans, against all claims of third parties claiming through
or under the Seller; provided, however, that nothing in this
Section 4.01 shall prevent or be deemed to prohibit the Seller from suffering
to
exist upon any of the Mortgage Loans any liens for municipal or other local
taxes and other governmental charges if such taxes or governmental charges
shall
not at the time be due and payable or if the Seller shall currently be
contesting the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect
thereto.
(b) The
Seller hereby covenants that neither it nor any affiliate of the Seller will
directly solicit any Mortgagor hereunder to refinance the related Mortgage
Loan. For the purposes of the foregoing, neither the Seller nor any
affiliate of the Seller shall be deemed to directly solicit any Mortgagor if
the
Seller responds to a request from a Mortgagor regarding a refinancing or if
the
Mortgagor receives marketing materials which are generally
disseminated.
ARTICLE
V.
INDEMNIFICATION
WITH RESPECT TO THE SELLER INFORMATION
Section
5.01 Indemnification.
(a)
The Seller agrees to indemnify and
hold harmless the Purchaser, each of its directors, each of its officers and
each person or entity who controls the Purchaser or any such person, within
the
meaning of Section 15 of the Securities Act of 1933, as amended (the “Securities
Act”), against any and all losses, claims, damages or liabilities, joint and
several, as incurred, to which the Purchaser, or any such person or entity
may
become subject, under the Securities Act or otherwise, and will reimburse the
Purchaser, each such director and officer and each such controlling person
for
any legal or other expenses incurred by the Purchaser or such controlling person
in connection with investigating or defending any such losses, claims, damages
or liabilities, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Prospectus Supplement or the Free Writing Prospectus, or any amendment or
supplement to the Prospectus Supplement or the Free Writing Prospectus approved
in writing by the Seller or the omission or the alleged omission to state
therein a material fact necessary in order to make the statements in the
Prospectus Supplement or any
13
amendment
or supplement thereto, or the Free Writing Prospectus or any amendment or
supplement thereto, approved in writing by the Seller, in the light of the
circumstances under which they were made, not misleading, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission relates to the Seller Information contained in the Prospectus
Supplement or the Free Writing Prospectus and (ii) any untrue statement or
alleged untrue statement of any material fact contained in the information
on
the Mortgage Loan Schedule transmitted to the Purchaser or any affiliate thereof
by computer tape (unless such information was amended by information contained
on a subsequent computer tape) by or on behalf of the Seller containing
information regarding the assets of the Trust. This indemnity
provision will be in addition to any liability which the Seller may otherwise
have.
(b) The
Purchaser agrees to indemnify and hold harmless the Seller, each of its
officers, directors and each person or entity who controls the Seller or any
such person, against any and all losses, claims, damages or liabilities, joint
and several, to which the Seller, or any such person or entity may become
subject, under the Securities Act or otherwise, and will reimburse the Seller
for any legal or other expenses incurred by the Seller, each such officer and
director and such controlling person in connection with investigating or
defending any such losses, claims, damages or liabilities insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus Supplement or any amendment or
supplement thereto, or the Free Writing Prospectus or any amendment or
supplement thereto or the omission or the alleged omission to state therein
a
material fact necessary in order to make the statements in the Prospectus
Supplement or any amendment or supplement thereto, or the Free Writing
Prospectus or any amendment or supplement thereto, in the light of the
circumstances under which they were made, not misleading, but only to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission is not contained in the Seller Information in the Prospectus Supplement
or the Free Writing Prospectus. This indemnity provision will be in
addition to any liability which the Purchaser may otherwise have.
(c) Promptly
after receipt by any indemnified party under this Article V of notice of any
claim or the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against any indemnifying party under
this
Article V, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure
to notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this Article V, except to the extent
it
has been materially prejudiced by such failure and, provided further, that
the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Article
V.
If
any
such claim or action shall be brought against an indemnified party, and it
shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any
other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election
to
assume the defense of such claim or action, the indemnifying party shall not
be
liable to the indemnified party under this Article V for any legal or other
expenses subsequently incurred by
14
the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
Any
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of
such counsel shall be at the expense of such indemnified party unless: (i)
the
employment thereof has been specifically authorized by the indemnifying party
in
writing, (ii) such indemnified party shall have been advised in writing by
such
counsel that there may be one or more legal defenses available to it which
are
different from or additional to those available to the indemnifying party and
in
the reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel, or (iii) the indemnifying party has failed
to
assume the defense of such action and employ counsel reasonably satisfactory
to
the indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at
the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations
or
circumstances, be liable for the reasonable fees and expenses of more than
one
separate firm of attorneys (in addition to local counsel) at any time for all
such indemnified parties, which firm shall be designated in writing by the
Purchaser, if the indemnified parties under this Article V consist of the
Purchaser, or by the Seller, if the indemnified parties under this Article
V
consist of the Seller.
Each
indemnified party, as a condition of the indemnity provisions contained in
Sections 5.01(a) and (b) hereof, shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to
indemnify and hold harmless any indemnified party from and against any loss
or
liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to consent to a settlement of any action, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid request
and the indemnifying party has not previously provided the indemnified party
with written notice of its objection to such settlement. No
indemnifying party shall effect any settlement of any pending or threatened
proceeding in respect of which an indemnified party is or could have been a
party and indemnity is or could have been sought hereunder, without the written
consent of such indemnified party, unless settlement includes an unconditional
release of such indemnified party from all liability and claims that are the
subject matter of such proceeding.
In
order
to provide for just and equitable contribution in circumstances in which the
indemnity agreement provided for in this Article V are for any reason held
to be
unenforceable although applicable in accordance with its terms, the Seller,
on
the one hand, and the Purchaser, on the other, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by
said indemnity provision incurred by the Seller and
15
the
Purchaser in such proportions as shall be appropriate to reflect the relative
benefits received by the Seller, on the one hand, and the Purchaser, on the
other, from the sale of the Mortgage Loans determined in accordance with the
ratio that the difference between the proceeds to the Seller in respect of
the
Mortgage Loans and the total proceeds received by the Purchaser from the sale
of
the Offered Certificates (the “Spread”) bears to the total proceeds received by
the Purchaser from the sale of the Offered Certificates, and the Seller is
responsible for the balance; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the indemnified parties shall contribute in such proportion as is appropriate
to
reflect not only the relative benefits but also the relative fault of the
indemnified parties in connection with the statements or omissions which
resulted in such losses as well as any other relevant equitable
considerations. Relative benefits shall be determined as provided in
the second preceding sentence. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Seller or the Purchaser. For
purposes of this Section 5.01, each officer and director of the Purchaser and
each person, if any, who controls the Purchaser within the meaning of Section
15
of the 1933 Act shall have the same rights to contribution as the Purchaser,
each director and officer of the Seller and each person, if any, who controls
the Seller within the meaning of Section 15 of the 1933 Act shall have the
same
rights to contribution as the Seller.
ARTICLE
VI.
TERMINATION
Section
6.01 Termination. The respective obligations and
responsibilities of the Seller and the Purchaser created hereby shall terminate,
except for the Seller’s and the Purchaser’s indemnity obligations as provided
herein, upon the termination of the Trust as provided in Article VII of the
Pooling and Servicing Agreement.
ARTICLE
VII.
MISCELLANEOUS
PROVISIONS
Section
7.01. Amendment. This Agreement may be amended from
time to time by the Seller and the Purchaser, by written agreement signed by
the
Seller and the Purchaser.
Section
7.02. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York and the
obligations, rights and remedies of the parties hereunder shall be determined
in
accordance with such laws.
Section
7.03. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, postage prepaid, addressed
as follows:
16
if
to the
Seller:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Holdings LLC
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-12
or
such
other address as may hereafter be furnished to the Purchaser in writing by
the
Seller.
if
to the
Purchaser:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-12
or
such
other address as may hereafter be furnished to the Seller in writing by the
Purchaser.
Section
7.04. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be held
invalid for any reason whatsoever, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or
enforceability of the other provisions of this Agreement.
Section
7.05. Counterparts. This Agreement may be executed in
one or more counterparts by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed to be an original
and such counterparts, together, shall constitute one and the same
agreement.
Section
7.06. Further Agreements. The Purchaser and the Seller
each agree to execute and deliver to the other such additional documents,
instruments or agreements as may be necessary or reasonable and appropriate
to
effectuate the purposes of this Agreement or in connection with the issuance
of
any Series of Certificates representing interests in the Mortgage
Loans.
Without
limiting the generality of the foregoing, as a further inducement for the
Purchaser to purchase the Mortgage Loans from the Seller, the Seller will
cooperate with the Purchaser in connection with the sale of any of the
securities representing interests in the Mortgage Loans. In that
connection, the Seller will provide to the Purchaser any and all information
and
appropriate verification of information, whether through letters of its auditors
and counsel or otherwise, as the Purchaser shall reasonably request and will
provide to the Purchaser such additional representations and warranties,
covenants, opinions of counsel, letters from auditors, and certificates of
public officials or officers of the Seller as are reasonably required in
connection with such transactions and the offering of investment grade
securities rated by the Rating Agencies.
Section
7.07. Intention of the Parties. It is the intention of
the parties that the Purchaser is purchasing, and the Seller is selling, the
Mortgage Loans rather than the pledging of the
17
Mortgage
Loans by the Seller to secure a loan by the Purchaser to the
Seller. Accordingly, the parties hereto each intend to treat the
transaction for Federal income tax purposes and all other purposes as a sale
by
the Seller and a purchase by the Purchaser of the Mortgage Loans. The
Purchaser will have the right to review the Mortgage Loans and the related
Mortgage Files to determine the characteristics of the Mortgage Loans which
will
affect the Federal income tax consequences of owning the Mortgage Loans and
the
Seller will cooperate with all reasonable requests made by the Purchaser in
the
course of such review.
Section
7.08. Successors and Assigns: Assignment of Purchase
Agreement. This Agreement shall bind and inure to the benefit of and
be enforceable by the Seller, the Purchaser and the Trustee. The
obligations of the Seller under this Agreement cannot be assigned or delegated
to a third party without the consent of the Purchaser which consent shall be
at
the Purchaser’s sole discretion, except that the Purchaser acknowledges and
agrees that the Seller may assign its obligations hereunder to any Person into
which the Seller is merged or any corporation resulting from any merger,
conversion or consolidation to which the Seller is a party or any Person
succeeding to the business of the Seller. The parties hereto
acknowledge that the Purchaser is acquiring the Mortgage Loans for the purpose
of contributing them to the trust that will issue a series of certificates
representing undivided interests in such Mortgage Loans. As an
inducement to the Purchaser to purchase the Mortgage Loans, the Seller
acknowledges and consents to the assignment by the Purchaser to the Trustee
of
all of the Purchaser’s rights against the Seller pursuant to this Agreement
insofar as such rights relate to Mortgage Loans transferred to the Trustee
and
to the enforcement or exercise of any right or remedy against the Seller
pursuant to this Agreement by the Trustee. Such enforcement of a
right or remedy by the Trustee shall have the same force and effect as if the
right or remedy had been enforced or exercised by the Purchaser
directly.
Section
7.09. Survival. The representations and warranties set
forth in Sections 3.01 and 3.02 and the provisions of Article V hereof shall
survive the purchase of the Mortgage Loans hereunder.
18
IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed to this Mortgage Loan Purchase Agreement by their respective officers
thereunto duly authorized as of the day and year first above
written.
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ CAPITAL I INC.,
as
Purchaser
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS
LLC
as
Seller
|
|||
|
|
By:
|
/s/ | |
| Name: | |||
| Title: | |||
Acknowledged
and Agreed:
LASALLE
BANK, NATIONAL ASSOCIATION,
as
Trustee for the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-12
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-12
By: ______________________________
Name:
Title:
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[on
file
with Custodian, Trustee, Seller and Purchaser]