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Exhibit 99.2
Capmark Mortgage Loan Purchase Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated
and effective August 14, 2007, between Capmark Finance Inc. as
seller (the
"Seller"), and Deutsche Mortgage & Asset Receiving
Corporation, as purchaser
(the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise
convey to
the Purchaser, and the Purchaser desires to purchase, subject to
the terms and
conditions set forth below, the commercial, multifamily and
manufactured housing
mortgage loans (collectively, the "Mortgage Loans") identified
on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred,
together
with other commercial, multifamily and manufactured housing
mortgage loans (such
mortgage loans, the "Other Mortgage Loans") to COMM 2007-C9
Mortgage Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the
beneficial
ownership of which will be evidenced by a series of mortgage
pass-through
certificates (the "Certificates"). Certain classes of the
Certificates will be
rated by Moody's Investors Service, Inc., and Standard and
Poor's Rating
Services, a division of The McGraw Hill Companies, Inc.
(together, the "Rating
Agencies"). Certain classes of the Certificates (the "Registered
Certificates")
will be registered under the Securities Act of 1933, as amended
(the "Securities
Act"). The Trust Fund will be created and the Certificates will
be issued
pursuant to a pooling and servicing agreement to be dated as of
August 1, 2007
(the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor,
Capmark Finance Inc., as the master servicer with respect to the
Mortgage Loans
sold to the trust by Capmark Finance Inc. and the Capmark/GACC
Mortgage Loans
(as defined therein) (the "Capmark Master Servicer"), KeyCorp
Real Estate
Capital Markets, Inc., as the master servicer with respect to
the Mortgage Loans
sold to the trust by German American Capital Corporation (other
than the
Capmark/GACC Mortgage Loans) and KeyBank National Association
(the "KRECM Master
Servicer"), LNR Partners, Inc., as special servicer with respect
to all of the
Mortgage Loans other than the DDR Portfolio Mortgage Loan (in
such capacity, the
"Special Servicer"), Deutsche Bank Trust Company Americas, as
certificate
administrator (the "Certificate Administrator") and paying
agent, and Wells
Fargo Bank, N.A., as trustee (the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Capmark Securities Inc.
("CSI"), KeyBanc
Capital Markets Inc. ("KCM"), Citigroup Global Markets Inc.
("Citi") and Morgan
Stanley & Co. Incorporated ("Morgan Stanley," and
collectively with DBS, CSI,
KCM and Morgan Stanley, in such capacity the "Underwriters")
pursuant to an
underwriting agreement dated August 8, 2007 (the "Underwriting
Agreement"). The
Purchaser intends to sell certain other Certificates (the "Non
Registered
Certificates") pursuant to a certificate purchase agreement
dated August 8, 2007
(the "Certificate Purchase Agreement") to Deutsche Bank
Securities Inc. (in such
capacity, the "Initial Purchaser"). Capitalized terms not
otherwise defined
herein have the meanings assigned to them in the Pooling and
Servicing Agreement
(as of the Closing Date) or in the Capmark Indemnification
Agreement which was
entered into by the Seller, the Purchaser and the Underwriters
on August 6, 2007
(the "Capmark Indemnification Agreement").
Now, therefore, in consideration of the premises and the
mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
Subject to the terms and conditions set forth in this Agreement,
the
Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser
upon receipt of the Mortgage Loan Purchase Price referred to in
this Section 1,
and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale
of the Mortgage Loans shall take place on August 14, 2007 or
such other date as
shall be mutually acceptable to the parties hereto (the "Closing
Date"). As of
the close of business on the related Due Date of each Mortgage
Loan in August
2007 (the "Cut-off Date"), the Mortgage Loans will have an
aggregate principal
balance (the "Aggregate Cut-off Date Balance"), after
application of all
payments of principal due thereon on or before the Cut-off Date,
whether or not
received, of $426,729,461, subject to a variance of plus or
minus 5.0%. The
purchase price of the Mortgage Loans (inclusive of accrued
interest and
exclusive of the Seller's pro rata share of the costs set forth
in Section 9
hereof) (the "Mortgage Loan Purchase Price") shall be equal to
the amount set
forth on the cross receipt between the Seller and the Purchaser
dated the date
hereof.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the Seller
of
the Mortgage Loan Purchase Price, the satisfaction of the other
closing
conditions required to be satisfied on the part of Purchaser
pursuant to Section
7 and the issuance of the Certificates, the Seller agrees to
sell, transfer,
assign, set over and otherwise convey to the Purchaser, without
recourse, all
the right, title and interest of the Seller in and to the
Mortgage Loans
identified on the Mortgage Loan Schedule, including all rights
to payment in
respect thereof, which includes all interest and principal
received or
receivable by the Seller on or with respect to the Mortgage
Loans after the
Cut-off Date (subject to the proviso in the next sentence),
together with all of
the Seller's right, title and interest in and to the proceeds of
any related
title, hazard, or other insurance policies and any escrow,
reserve or other
comparable accounts related to the Mortgage Loans, subject to
the servicing
rights of the Capmark Master Servicer under the Pooling and
Servicing Agreement.
The Purchaser shall be entitled to (and, to the extent received
by or on behalf
of the Seller, the Seller shall deliver or cause to be delivered
to or at the
direction of the Purchaser) all scheduled payments of principal
and interest due
on the Mortgage Loans after the Cut-off Date, and all other
recoveries of
principal and interest collected thereon after the Cut-off Date;
provided,
however, that all scheduled payments of principal and interest
accrued but not
paid thereon, due on or before the Cut-off Date and collected
after the Cut-off
Date shall belong to the Seller, and the Purchaser or its
successors or assigns
shall promptly remit any such payments to the Seller.
Notwithstanding the foregoing, the Seller shall retain the
right
(and such right shall not be transferred or sold to the
Purchaser hereunder), to
the extent set forth in the underlying Mortgage Loan documents
in connection
with any permitted defeasance or partial defeasance of the
related Mortgage
Loan, to designate or establish an accommodation borrower
("Successor
Borrower"), which satisfies the Seller's then current
requirements for a "single
purpose entity", to assume ownership of the required defeasance
collateral and
liability for all or, in the case of partial defeasance, a
portion of, the
original Mortgage Loan Borrower's obligations under the related
Mortgage Loan
documents (to the extent that liability thereunder survives
repayment of the
related Mortgage Loan and release of the related Mortgaged
Property or, in the
case of partial defeasance, the release property). The foregoing
shall not
reduce the obligations of the Capmark Master Servicer under
Section 3.09 of the
Pooling and Servicing Agreement.
On or prior to the Closing Date, the Seller shall retain a
third
party vendor reasonably satisfactory to the Controlling Class
Representative to
complete the assignment and recordation of the related Loan
Documents, as
contemplated by the next sentence. On or promptly following the
Closing Date,
the Seller shall cause such third party vendor, to the extent
possession of
recorded copies of each Mortgage and the documents described in
clauses (iii),
(iv), (v), (viii), (xiii) and (xiv) of Exhibit B have been
delivered to it, at
the expense of the Seller, (1) to prepare and record (a) each
Assignment of
Mortgage referred to in clause (iii) of Exhibit B which has not
yet been
submitted for recording and (b) each Reassignment of Assignment
of Leases, Rents
and Profits referred to in clause (viii)(B) of Exhibit B (if not
otherwise
included in the related Assignment of Mortgage) which has not
yet been submitted
for recordation; and (2) to prepare and file each UCC assignment
of financing
statement referred to in clause (v)(B) or (xiii) of Exhibit B
which has not yet
been submitted for filing or recording. The Seller shall direct
the related
third party vendor to promptly prepare and submit (and in no
event later than 30
Business Days following the receipt of the related documents in
the case of
clause 1(a) of the prior sentence and 60 days following the
receipt of the
applicable documents in the case of clauses 1(b) and 2 of the
prior sentence)
for recording or filing, as the case may be, in the appropriate
public recording
or filing office, each such document. In the event that any such
document is
lost or returned unrecorded because of a defect therein, the
Seller, at its
expense, shall promptly prepare a substitute document for
signature by the
Purchaser or itself, as applicable, and thereafter the Seller
shall cause each
such document to be duly recorded or filed. The Seller shall,
promptly upon
receipt of the original recorded or filed copy (and in no event
later than five
Business Days following such receipt) deliver such original to
the Custodian (in
the case of each UCC financing statement or UCC assignment of
financing
statement, with evidence of filing or recording thereon).
Notwithstanding
anything to the contrary contained in this Section 2, in those
instances where
the public recording office retains the original Mortgage,
Assignment of
Mortgage or Reassignment of Assignment of Leases, Rents and
Profits, if
applicable, after any has been recorded, the obligations
hereunder of the Seller
shall be deemed to have been satisfied upon delivery to the
Custodian of a copy
of the recorded original of such Mortgage, Assignment of
Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if
applicable.
(b) In connection with the Seller's assignment pursuant to
subsection (a) above, the Seller shall deliver to and deposit
with, or cause to
be delivered to and deposited with, the Custodian, on or before
the Closing
Date, the documents and/or instruments referred to in clauses
(i), (ii), (vii),
(xi) and (xvii) of Exhibit B for each Mortgage Loan so assigned
(with originals
with respect to clauses (i) and (xvii) and copies with respect
to clauses (ii),
(vii) and (xi)) and, within 30 days following the Closing Date,
the remaining
applicable documents in Exhibit B for each such Mortgage Loan
with copies to the
Capmark Master Servicer; provided, however, the documents
specified in item (x),
(xix) and (xx) shall be delivered only to the Capmark Master
Servicer.
(c) If the Seller cannot deliver, or cause to be delivered, as
to
any Mortgage Loan, the original Note, the Seller shall deliver a
copy or
duplicate original of such Note, together with an affidavit
certifying that the
original thereof has been lost or destroyed and an
indemnification in connection
therewith in favor of the Trustee.
(d) If the Seller cannot deliver, or cause to be delivered, as
to
any Mortgage Loan, the original or a copy of any of the
documents and/or
instruments referred to in clauses (ii), (iv)(A), (v)(A),
(viii)(A), (xiv) and
(xvi) of Exhibit B and the UCC financing statements and UCC
assignments of
financing statements referred to in clause (xiii) of Exhibit B,
with evidence of
recording or filing thereon, solely because of a delay caused by
the public
recording or filing office where such document or instrument has
been delivered
for recordation or filing, or because such original recorded or
filed document
has been lost or returned from the recording or filing office
and subsequently
lost, as the case may be, the delivery requirements of this
Section 2(b) shall
be deemed to have been satisfied as to such missing item, and
such missing item
shall be deemed to have been included in the related Mortgage
File, provided
that a copy of such document or instrument (without evidence of
recording or
filing thereon, but certified (which certificate may relate to
multiple
documents and/or instruments) by the applicable public recording
or filing
office, the applicable title insurance company or by the Seller
to be a true and
complete copy of the original thereof submitted for recording or
filing, as the
case may be) has been delivered to the Trustee within 45 days
after the Closing
Date, and either the original of such missing document or
instrument, or a copy
thereof, with evidence of recording or filing, as the case may
be, thereon, is
delivered to or at the direction of the Purchaser (or any
subsequent owner of
the affected Mortgage Loan, including without limitation the
Trustee) within 180
days after the Closing Date (or within such longer period after
the Closing Date
as the Purchaser (or such subsequent owner) may consent to,
which consent shall
not be unreasonably withheld so long as the Seller has provided
the Purchaser
(or such subsequent owner) with evidence of such recording or
filing, as the
case may be, or has certified to the Purchaser (or such
subsequent owner) as to
the occurrence of such recording or filing, as the case may be,
and is, as
certified to the Purchaser (or such subsequent owner) no less
often than
quarterly, in good faith attempting to obtain from the
appropriate public
recording or filing office such original or copy).
If the Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, the original or a copy of the related lender's
title insurance
policy referred to in clause (vii) of Exhibit B solely because
such policy has
not yet been issued, the delivery requirements of this Section
2(b) shall be
deemed to be satisfied as to such missing item, and such missing
item shall be
deemed to have been included in the related Mortgage File,
provided that the
Seller has delivered to the Trustee a binder marked as binding
and countersigned
by the title insurer or its authorized agent (which may be a pro
forma or
specimen title insurance policy which has been accepted or
approved in writing
as binding by the related title insurance company) or an
acknowledged closing
instruction or escrow letter, and the Seller shall deliver to or
at the
direction of the Purchaser (or any subsequent owner of the
affected Mortgage
Loan, including without limitation the Trustee), promptly
following the receipt
thereof, the original related lender's title insurance policy
(or a copy
thereof). In addition, notwithstanding anything to the contrary
contained
herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any
document referred
to in Exhibit B covering all the Mortgage Loans in such group,
then the
inclusion of the original of such document in the Mortgage File
for any of the
Mortgage Loans in such group shall be deemed an inclusion of
such original in
the Mortgage File for each such Mortgage Loan. On the Closing
Date, upon (i)
notification from the Seller that the purchase price referred to
in Section 1
has been received by the Seller and (ii) the issuance of the
Certificates, the
Purchaser shall be authorized to release to the Trustee or its
designee all of
the Mortgage Files in the Purchaser's possession relating to the
Mortgage Loans.
Notwithstanding anything herein to the contrary, with respect to
the
documents referred to in clause (xvii) and clause (xviii) on
Exhibit B, the
Capmark Master Servicer shall hold the original of each such
document in trust
on behalf of the Trustee in order to draw on such letter of
credit on behalf of
the Trust and the Seller shall be deemed to have satisfied the
delivery
requirements of this Agreement by delivering the original of
each such document
to the Capmark Master Servicer. The Seller shall pay any costs
of assignment or
amendment of such letter of credit required (which assignment or
amendment shall
change the beneficiary of the letter of credit to the Trust in
care of the
Capmark Master Servicer) in order for the Capmark Master
Servicer to draw on
such letter of credit on behalf of the Trust. In the event that
the documents
specified in clause (xviii) on Exhibit B are missing because the
related
assignment or amendment documents have not been completed, the
Seller shall take
all reasonably necessary steps to enable the Capmark Master
Servicer to draw on
the related letter of credit on behalf of the Trust including,
if necessary,
drawing on the letter of credit in its own name pursuant to
written instructions
from the Capmark Master Servicer and immediately remitting such
funds (or
causing such funds to be remitted) to the Capmark Master
Servicer.
Contemporaneously with the execution of this Agreement by
the
Purchaser and the Seller, the Seller shall deliver a power of
attorney to each
of the Capmark Master Servicer and the Special Servicer at the
direction of the
Controlling Class Representative or its assignees, to take such
other action as
is necessary to effect the delivery, assignment and/or
recordation of any
documents and/or instruments relating to any Mortgage Loan which
have not been
delivered, assigned or recorded at the time required for
enforcement by the
Trust Fund. The Seller will be required to effect at its expense
the assignment
and recordation of its Loan Documents until the assignment and
recordation of
all such Loan Documents has been completed.
(e) As to each Mortgage Loan, the Seller shall be responsible
for
all costs associated with the recording or filing, as the case
may be, of each
assignment referred to in clauses (iii) and (viii)(B) of Exhibit
B and each
UCC-2 and UCC-3 assignment of financing statement, if any,
referred to in clause
(v)(B) of Exhibit B. 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 promptly prepare or cause the preparation of a
substitute therefor
or cure or cause the curing of such defect, as the case may be,
and shall
thereafter deliver the substitute or corrected document to or at
the direction
of the Purchaser (or any subsequent owner of the affected
Mortgage Loan,
including without limitation the Trustee) for recording or
filing, as
appropriate, at the Seller's expense.
(f) Except as provided below, all documents and records in
the
Seller's possession (or under its control) relating to the
Mortgage Loans that
are not required to be a part of a Mortgage File in accordance
with Exhibit B
but that are reasonably required to service the Mortgage Loans
(all such other
documents and records, including Environmental Reports, as to
any Mortgage Loan,
the "Servicing File"), together with all escrow payments,
reserve funds and
other comparable funds in the possession of the Seller (or under
its control)
with respect to the Mortgage Loans, shall (unless they are held
by a
sub-servicer that shall, as of the Closing Date, begin acting on
behalf of the
Capmark Master Servicer pursuant to a written agreement between
such parties) be
delivered by the Seller (or its agent) to the Purchaser (or its
designee) no
later than the Closing Date; provided, however, the Seller shall
not be required
to deliver, and the Servicing File shall not be deemed to
include drafts of Loan
Documents, attorney-client or internal communications of the
Seller or its
affiliates or Seller's credit underwriting or due diligence
analyses or related
data (as distinguished from Environmental Reports, financial
statements, credit
reports, title reports, structural and engineering reports,
appraisals and other
reports, analyses or data provided by the Borrowers or third
parties other than
the Seller's attorneys). If a sub-servicer shall, as of the
Closing Date, begin
acting on behalf of the Capmark Master Servicer with respect to
any Mortgage
Loan pursuant to a written agreement between such parties, the
Seller or its
agent shall deliver a copy of the related Servicing File to the
Capmark Master
Servicer.
(g) Each of the Seller's and the Purchaser's records will
reflect
the transfer of the Mortgage Loans to the Purchaser as a sale,
including for
accounting purposes. Following the transfer of the Mortgage
Loans to the
Purchaser, the Seller will not take any action inconsistent with
the ownership
of the Mortgage Loans by the Purchaser or its assignees.
(h) Furthermore, it is the express intent of the parties hereto
that
the conveyance of the Mortgage Loans by Seller to Purchaser as
provided in this
Agreement be, and be construed as, a sale of the Mortgage Loans
by Seller to
Purchaser and not a pledge of the Mortgage Loans by Seller to
Purchaser to
secure a debt or other obligation of Seller. However, in the
event that,
notwithstanding the intent of the parties, the Mortgage Loans
are held to be
property of Seller or if for any reason this Agreement is held
or deemed to
create a security interest in the Mortgage Loans:
(i) this Agreement shall hereby create a security agreement
within
the meaning of Articles 8 and 9 of the Uniform Commercial Code
in effect
in the applicable state;
(ii) the conveyance provided for in this Agreement shall
hereby
grant from Seller to Purchaser a security interest in and to all
of
Seller's right, title, and interest, whether now owned or
hereafter
acquired, in and to:
(A) all accounts, contract rights (including any
guarantees),
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 property described in the
Mortgage
Loans, including the related Notes, Mortgages and title, hazard
and
other insurance policies, identified on the Mortgage Loan
Schedule,
and all distributions with respect thereto payable after the
Cut-off
Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit
accounts,
certificates of deposit, goods, letters of credit, advices of
credit
and investment property 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), in each case, payable after
the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral
described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Purchaser or its assignee of the Notes
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 or a
person designated by him or her, for purposes of perfecting the
security
interest pursuant to the Uniform Commercial Code (including,
without
limitation, Sections 9-306, 9-313 and 9-314 thereof) as in force
in the
relevant jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, 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 (as applicable), Purchaser or
its
assignee for the purpose of perfecting such security interest
under
applicable law.
The Seller at the direction of the Purchaser or its assignee,
shall,
to the extent consistent with this Agreement, take such actions
as may be
reasonably necessary to ensure that, if this Agreement were
deemed to create a
security interest in the Mortgage Loans and the proceeds
thereof, such security
interest would be a perfected security interest of first
priority under
applicable law and will be maintained as such throughout the
term of this
Agreement. In connection herewith, Purchaser and its assignee
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 and may
execute and
file such UCC Financing Statements as may be reasonably
necessary or appropriate
to accomplish the foregoing.
(i) It is further acknowledged and agreed by the Seller that
the
Purchaser intends to convey all right, title and interest of the
Purchaser
in and to the Mortgage Loans and all rights and remedies under
this
Agreement (excluding the Purchaser's rights and remedies under
Section 9
below and the Capmark Indemnification Agreement) to the Trustee
on behalf
of the Certificateholders, including, without limitation, all
rights and
remedies as may be available under Section 6 to the Purchaser in
the event
of a Material Breach or a Material Defect; provided, that the
Trustee on
behalf of the Certificateholders shall be a third-party
beneficiary of
this Agreement and shall be entitled to enforce any obligations
of the
Seller hereunder in connection with a Material Breach or a
Material Defect
as if the Trustee on behalf of the Certificateholders had been
an original
party to this Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due
Diligence
Review.
The Seller shall reasonably cooperate with any examination of
the
Mortgage Files and Servicing Files that may be undertaken by or
on behalf of the
Purchaser. The fact that the Purchaser has conducted or has
failed to conduct
any partial or complete examination of the Mortgage Files and/or
Servicing Files
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law under Section 6 for a breach of the Seller's
representations,
warranties and covenants set forth in or contemplated by Section
4.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) The Seller hereby makes, as of the date hereof (or as of
such
other date specifically provided in the particular
representation or warranty),
to and for the benefit of the Purchaser, the Trustee on behalf
of the
Certificateholders and the respective successors-in-interest of
the Purchaser
and the Trustee, each of the representations and warranties set
forth in Exhibit
C subject to the exceptions set forth in Schedule C-1 to Exhibit
C.
(b) In addition, the Seller, as of the date hereof, hereby
represents and warrants to, and covenants with, the Purchaser
that:
(i) The Seller is a corporation, duly organized, validly
existing
and in good standing under the laws of the State of California
and is in
compliance with the laws of each State in which any Mortgaged
Property is
located to the extent necessary to ensure the enforceability of
each
Mortgage Loan and to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and
the performance of, and compliance with, the terms of this
Agreement by
the Seller, do not violate the Seller's organizational documents
or
constitute a default (or an event which, with notice or lapse of
time, or
both, would constitute a default) under, or result in the breach
of, any
material agreement or other instrument to which it is a party or
which is
applicable to it or any of its assets, in each case which
materially and
adversely affects the ability of the Seller to carry out the
transactions
contemplated by this Agreement.
(iii) The Seller has the full power and authority to enter into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and
delivery by the Purchaser, constitutes a valid, legal and
binding
obligation of the Seller, enforceable against the Seller in
accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency,
reorganization, receivership, moratorium and other laws
affecting the
enforcement of creditors' rights generally, (B) general
principles of
equity, regardless of whether such enforcement is considered in
a
proceeding in equity or at law, and (C) 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 or
contribution for
securities laws liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance of, and
compliance with,
the terms of this Agreement do not constitute a violation of,
any law, any
judgment, order or decree of any court or arbiter, or any
order,
regulation or demand of any federal, state or local governmental
or
regulatory authority, which violation, in the Seller's good
faith and
reasonable judgment, is likely to affect materially and
adversely either
the ability of the Seller to perform its obligations under this
Agreement
or the financial condition of the Seller.
(vi) No litigation is pending or, to the best of the
Seller's
knowledge, threatened against the Seller the outcome of which,
in the
Seller's good faith and reasonable judgment, is likely to
materially and
adversely affect the ability of the Seller to perform its
obligations
under this Agreement or the financial condition of the
Seller.
(vii) The Seller has not dealt with any broker, investment
banker,
agent or other person, other than the Purchaser, the
Underwriters, the
Initial Purchasers, and their respective affiliates, that may be
entitled
to any commission or compensation in connection with the sale of
the
Mortgage Loans or the consummation of any of the other
transactions
contemplated hereby.
(viii) Insofar as it relates to the Mortgage Loans, the
information
set forth in Annex A-1 and Annex A-2 to the Prospectus
Supplement (as
defined in the Capmark Indemnification Agreement) (the "Loan
Detail") and,
to the extent consistent therewith, the information set forth on
the
diskette attached to the Prospectus Supplement and the
accompanying
prospectus (the "Diskette"), is true and correct in all material
respects.
Insofar as it relates to the description of the Mortgage Loans
and/or the
Seller and does not represent a restatement or aggregation of
the
information on the Loan Detail, the information set forth in
Time of Sale
Information (as defined in the Capmark Indemnification
Agreement), the
Memorandum (as defined in the Capmark Indemnification Agreement)
(insofar
as the Prospectus Supplement is an exhibit thereto) and in the
Prospectus
Supplement under the headings "Summary of the Prospectus
Supplement--Relevant Parties and Dates--Sponsors," "--Mortgage
Loan
Sellers," "--Originators," "--The Mortgage Pool," "Risk
Factors--Risks
Related to the Mortgage Loans," "Transaction Parties--The
Sponsors" and
"Description of the Mortgage Pool" and the information set forth
on Annex
A-1 and Annex A-2 and Annex B to the Prospectus Supplement, and
to the
extent it contains information consistent with that on such
Annex A-1 and
Annex A-2 set forth on the Diskette, does not (or, in the case
of the Time
of Sale Information, did not as of the Time of Sale (as defined
in the
Capmark Indemnification Agreement)) contain any untrue statement
of a
material fact or (in the case of the Memorandum, when read
together with
the other information specified therein as being available for
review by
investors) omit to state any material fact necessary to make
the
statements therein, in light of the circumstances under which
they were
made, not misleading.
(ix) 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 (including, with respect to
any bulk
sale laws), 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) 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, (2) such consents,
approvals,
authorizations, qualifications, registrations, filings or
notices as have
been obtained, made or given and (3) 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.
(c) Upon discovery by any of the Seller or the parties to
the
Pooling and Servicing Agreement of a breach of any of the
representations and
warranties made pursuant to and set forth in subsection (b)
above which
materially and adversely affects the interests of the Purchaser
or a breach of
any of the representations and warranties made pursuant to
subsection (a) above
and set forth in Exhibit C which materially and adversely
affects the value of
any Mortgage Loan, the value of the related Mortgaged Property
or the interests
therein of the Purchaser, the Trustee on behalf of the
Certificateholders or any
Certificateholder, the party discovering such breach shall give
prompt written
notice to the Seller and/or the other parties, as
applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents
and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing
and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser,
and the performance of, and compliance with, the terms of this
Agreement
by the Purchaser, do not violate the Purchaser's organizational
documents
or constitute a default (or an event which, with notice or lapse
of time,
or both, would constitute a default) under, or result in the
breach of,
any material agreement or other instrument to which it is a
party or which
is applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter
into
and consummate all transactions contemplated by this Agreement,
has duly
authorized the execution, delivery and performance of this
Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution
and
delivery by the Seller, constitutes a valid, legal and binding
obligation
of the Purchaser, enforceable against the Purchaser in
accordance with the
terms hereof, subject to (A) applicable bankruptcy,
insolvency,
reorganization, receivership, moratorium and other laws
affecting the
enforcement of creditors' rights generally, and (B) general
principles of
equity, regardless of whether such enforcement is considered in
a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution
and
delivery of this Agreement and its performance of, and
compliance with,
the terms of this Agreement will not constitute a violation of,
any law,
any judgment, order or decree of any court or arbiter, or any
order,
regulation or demand of any federal, state or local governmental
or
regulatory authority, which violation, in the Purchaser's good
faith and
reasonable judgment, is likely to affect materially and
adversely either
the ability of the Purchaser to perform its obligations under
this
Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's
knowledge, threatened against the Purchaser which would prohibit
the
Purchaser from entering into this Agreement or, in the
Purchaser's good
faith and reasonable judgment, is likely to materially and
adversely
affect either the ability of the Purchaser to perform its
obligations
under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker,
investment
banker, agent or other person, other than the Seller, the
Underwriters,
the Initial Purchasers and their respective affiliates, that may
be
entitled to any commission or compensation in connection with
the sale of
the Mortgage Loans or the consummation of any of the
transactions
contemplated hereby.
(viii) 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 Purchaser's
execution,
delivery and performance of or compliance by the Purchaser with
this
Agreement, or the consummation by the Purchaser of any
transaction
contemplated hereby, other than (1) such consents,
approvals,
authorizations, qualifications, registrations, filings or
notices as have
been obtained, made or given and (2) 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
Purchaser under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of
any
of the representations and warranties set forth above which
materially and
adversely affects the interests of the Seller, the party
discovering such breach
shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any of the parties to this Agreement discovers that
any
document constituting a part of a Mortgage File has not been
delivered within
the time periods provided for herein, has not been properly
executed, is
missing, does not appear to be regular on its face or contains
information that
does not conform in any material respect with the corresponding
information set
forth in the Mortgage Loan Schedule (each, a "Defect"), or
discovers or receives
notice of a breach of any representation or warranty of the
Seller made pursuant
to Section 4(a) of this Agreement with respect to any Mortgage
Loan (a
"Breach"), such party shall give prompt written notice thereof
to each of the
Rating Agencies, the Seller, the parties to the Pooling and
Servicing Agreement
and the Controlling Class Representative. If any such Defect or
Breach
materially and adversely affects the value of any Mortgage Loan,
the value of
the related Mortgaged Property or the interests therein of the
Purchaser, the
Trustee or any Certificateholders, then such Defect shall
constitute a "Material
Defect" or such Breach shall constitute a "Material Breach," as
the case may be;
provided, however, that if any of the documents specified in
clauses (i), (ii),
(vii), (xi) and (xvii) of the definition of "Mortgage File" is
not delivered,
and is certified as missing, pursuant to the first paragraph of
Section 2.01(b)
of the Pooling and Servicing Agreement, it shall be deemed a
Material Defect.
Promptly upon receiving written notice of any such Material
Defect or Material
Breach with respect to a Mortgage Loan (including through a
written notice given
by any party hereto, as provided above), the Seller shall, not
later than 90
days from the Seller's receipt of notice from the Capmark Master
Servicer, the
Special Servicer, the Trustee or the Custodian of such Material
Defect or
Material Breach, as the case may be (or, in the case of a
Material Defect or
Material Breach relating to a Mortgage Loan not being a
"qualified mortgage"
within the meaning of the REMIC Provisions, not later than 90
days after the
Seller or any party to the Pooling and Servicing Agreement
discovering such
Material Defect or Material Breach) (any such 90-day period, the
"Initial
Resolution Period"), (i) cure the same in all material respects,
(ii) repurchase
the affected Mortgage Loan at the applicable Repurchase Price or
(iii)
substitute a Qualifying Substitute Mortgage Loan for such
affected Mortgage Loan
(provided that in no event shall such substitution occur later
than the second
anniversary of the Closing Date) and pay to the Capmark Master
Servicer for
deposit into the Collection Account any Substitution Shortfall
Amount in
connection therewith; provided, however, that with respect to
any Material
Defect arising from a missing document as to which the Trustee
closing date
certification stated the Trustee was not in possession of such
document on the
Closing Date pursuant to the first sentence of the second
paragraph of Section
2.02 of the Pooling and Servicing Agreement, the related
Mortgage Loan Seller
shall have 30 days to cure such Material Defect; provided,
further, that with
respect to any Material Defect arising from a missing document
as to which the
Trustee inadvertently certified its possession of such document
(x) as of the
Closing Date, in the form of Exhibit S-1 to the Pooling and
Servicing Agreement
or (y) no later than 45 days following the Closing Date, in the
form of Exhibit
S-2 to the Pooling and Servicing Agreement, the Seller shall
have 30 days to
cure the Material Defect relating to the missing document;
provided, further,
that if (i) such Material Defect or Material Breach (other than
one relating to
the immediately preceding proviso) is capable of being cured but
not within the
Initial Resolution Period, (ii) such Material Defect or Material
Breach is not
related to any Mortgage Loan's not being a "qualified mortgage"
within the
meaning of the REMIC Provisions and (iii) the Seller has
commenced and is
diligently proceeding with the cure of such Material Defect or
Material Breach
within the Initial Resolution Period, then the Seller shall have
an additional
period equal to the applicable Resolution Extension Period to
complete such cure
or, failing such cure, to repurchase the Mortgage Loan or
substitute a
Qualifying Substitute Mortgage Loan. The Seller shall have an
additional 90 days
(without duplication of the additional 90-day period set forth
in the last
sentence of the definition of Resolution Extension Period) to
cure such Material
Defect or Material Beach, provided that, the Seller has
commenced and is
diligently proceeding with the cure of such Material Defect or
Material Breach
and such failure to cure is solely the result of a delay in the
return of
documents from the local filing or recording authorities.
Notwithstanding the
foregoing, if a Mortgage Loan is not secured by a hotel,
restaurant (operated by
a Borrower), healthcare facility, nursing home, assisted living
facility,
self-storage facility, theatre, manufactured housing or fitness
center (operated
by a Borrower) property, then the failure to deliver to the
Trustee copies of
the UCC financing statements with respect to such Mortgage Loan
shall not be a
Material Defect.
If the Seller is notified of a Defect in any Mortgage File
that
corresponds to information set forth in the Mortgage Loan
Schedule, the Seller
shall promptly correct such Defect and provide a new, corrected
Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan
Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule
for all
purposes. The failure of the Capmark Master Servicer, the
Special Servicer or
the Trustee to notify the Seller of a Material Defect or
Material Breach shall
not constitute a waiver of any cure or repurchase obligation,
provided that the
Seller must receive written notice thereof as described in this
Section 6(a)
before commencement of the Initial Resolution Period.
Notwithstanding the foregoing, if (x) there exists a Breach of
any
representation or warranty on the part of the Seller as set
forth in, or made
pursuant to, clause 38 of Exhibit C to this Agreement relating
to fees and
expenses payable by the Borrower associated with the exercise of
a defeasance
option, a waiver of a "due-on-sale" provision or a
"due-on-encumbrance"
provision or the release of any Mortgaged Property, and (y) the
related Mortgage
Loan documents specifically prohibit the Capmark Master Servicer
or Special
Servicer from requiring the related Borrower to pay such fees
and expenses,
then, upon notice by the Capmark Master Servicer or Special
Servicer, the Seller
shall transfer to the Collection Account, within 90 days of the
Seller's receipt
of such notice, the amount of any such fees and expenses borne
by the Trust Fund
that are the basis of such Breach. Upon its making such deposit,
the Seller
shall be deemed to have cured such Breach in all respects.
Provided such payment
is made, this paragraph describes the sole remedy available to
the Purchaser and
its assignees regarding any such Breach, regardless of whether
it constitutes a
Material Breach, and the Seller shall not be obligated to
repurchase or
otherwise cure such Breach.
(b) In connection with any repurchase of, or substitution for,
a
Mortgage Loan contemplated by this Section 6, (A) the Trustee,
the Capmark
Master Servicer (with respect to any such Mortgage Loan other
than a Specially
Serviced Loan) and the Special Servicer (with respect to any
such Mortgage Loan
that is a Specially Serviced Loan) shall each tender to the
Seller, and the
Seller shall be entitled to receive therefrom, upon delivery (i)
to each of the
Capmark Master Servicer or the Special Servicer, as applicable,
of a trust
receipt and (ii) to the Trustee by the Capmark Master Servicer
or the Special
Servicer, as applicable, of a Request for Release and an
acknowledgement by the
Capmark Master Servicer or applicable Special Servicer, as
applicable, of its
receipt of the Repurchase Price or the Substitution Shortfall
Amount from the
Seller, (1) all portions of the Mortgage File and other
documents pertaining to
such Mortgage Loan possessed by it and (2) each document that
constitutes a part
of the Mortgage File that was endorsed or assigned to the
Trustee shall be
endorsed or assigned without recourse in the form of endorsement
or assignment
provided to the Trustee by the Seller, as the case may be, to
the Seller as
shall be necessary to vest in the Seller the legal and
beneficial ownership of
each Removed Mortgage Loan to the extent such ownership was
transferred to the
Trustee, and (B) the Trustee shall release, or cause the release
of, any escrow
payments and reserve funds held by or on behalf of the Trustee,
the Capmark
Master Servicer or the Special Servicer, in respect of such
Removed Mortgage
Loan(s) to the Seller.
(c) This Section 6 provides the sole remedies available to
the
Purchaser, and its successors and permitted assigns (i.e., the
Trustee and the
holders of the Certificates) in respect of any Defect in a
Mortgage File or any
Breach. If the Seller defaults on its obligations to cure, to
repurchase, or to
substitute for, any Mortgage Loan in accordance with this
Section 6, or disputes
its obligation to cure, to repurchase, or to substitute for, any
Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as
applicable, may
take such action as is appropriate to enforce such payment or
performance,
including, without limitation, the institution and prosecution
of appropriate
proceedings. To the extent the Purchaser or the Trustee, as
applicable, prevails
in such proceeding, the Seller shall reimburse the Purchaser or
the Trustee, as
applicable, for all necessary and reasonable costs and expenses
incurred in
connection with the enforcement of such obligation of the Seller
to cure, to
repurchase, or to substitute for, any Mortgage Loan in
accordance with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans
constituting
a cross-collateralized group of Mortgage Loans are to be
repurchased or
substituted by the Seller as contemplated by this Section 6,
then, prior to the
subject repurchase or substitution, the Seller or its designee
shall use its
reasonable efforts, subject to the terms of the related Mortgage
Loan(s), to
prepare and, to the extent necessary and appropriate, have
executed by the
related Borrower and record, such documentation as may be
necessary to terminate
the cross-collateralization between the Mortgage Loan(s) in
such
cross-collateralized group of Mortgage Loans that are to be
repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s)
therein, on the
other hand, such that those two groups of Mortgage Loans are
each secured only
by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly
corresponding thereto; provided that, no such termination shall
be effected
unless and until the Controlling Class Representative, if one is
then acting,
has consented in its sole discretion and the Trustee has
received from the
Seller (i) an Opinion of Counsel to the effect that such
termination would not
cause an Adverse REMIC Event to occur and (ii) written
confirmation from each
Rating Agency that the then current rating assigned to any of
the Certificates
that are currently being rated by such Rating Agency will not be
qualified,
downgraded or withdrawn by reason of such termination; provided,
further, that
the Seller, in the case of the related Mortgage Loans, may, at
its option and
within the 90-day cure period described above (and any
applicable extension
thereof), purchase or substitute for the entire subject
cross-collateralized
group of Mortgage Loans in lieu of effecting a termination of
the
cross-collateralization. All costs and expenses incurred by the
Trustee or any
Person acting on its behalf pursuant to this paragraph shall be
included in the
calculation of the Repurchase Price for the Mortgage Loan(s) to
be repurchased
or substituted. If the cross-collateralization of any
cross-collateralized group
of Mortgage Loans cannot be terminated as contemplated by this
paragraph, then
the Seller shall repurchase or substitute the entire subject
cross-collateralized group of Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach
or
Material Defect with respect to one or more Mortgaged Properties
with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans,
the Seller will
not be obligated to repurchase the Mortgage Loan or
cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be
released
pursuant to the terms of any partial release provisions in the
related Loan
Documents (and such Mortgaged Property is, in fact, released),
(ii) the
remaining Mortgaged Property(ies) satisfy the requirements, if
any, set forth in
the Loan Documents and the Seller provides an Opinion of Counsel
to the effect
that such release would not cause an Adverse REMIC Event to
occur and (iii) each
Rating Agency then rating the Certificates shall have provided
written
confirmation that such release would not cause the then-current
ratings of the
Certificates rated by it to be qualified, withdrawn or
downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction
of
the Trustee, the Seller shall deliver to the Custodian for such
Qualifying
Substitute Mortgage Loan (with a copy to the Capmark Master
Servicer), the
related Mortgage File with the related Note endorsed as required
by Exhibit B
hereto. Pursuant to the Pooling and Servicing Agreement, Monthly
Payments due
with respect to Qualifying Substitute Mortgage Loans in or prior
to the month of
substitution shall not be part of the Trust Fund and will be
retained by the
Capmark Master Servicer and remitted by the Capmark Master
Servicer to the
related Seller on the next succeeding Distribution Date. For the
month of
repurchase or substitution, distributions to Certificateholders
pursuant to the
Pooling and Servicing Agreement will include the Monthly
Payment(s) due on the
related Removed Mortgage Loan and received by the Capmark Master
Servicer or the
Special Servicer on behalf of the Trust on or prior to the
related date of
repurchase or substitution, as applicable, and the Seller shall
be entitled to
retain all amounts received thereafter in respect of such
Removed Mortgage Loan.
In any month in which the Seller substitutes one or more
Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage
Loans, pursuant to
the Pooling and Servicing Agreement, the Capmark Master Servicer
will determine
the applicable Substitution Shortfall Amount. At the direction
of the Trustee,
the Seller shall deposit cash equal to such amount into the
Collection Account
concurrently with the delivery of the Mortgage Files for such
Qualifying
Substitute Mortgage Loans, without any reimbursement thereof. At
the direction
of the Trustee, the Seller shall give written notice to the
Purchaser and the
Capmark Master Servicer of such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Cadwalader,
Wickersham & Taft LLP,
One World Financial Center, New York, New York 10281 at 10:00
a.m., New York
City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties of the Seller and
the
Purchaser specified herein shall be true and correct as of the
Closing
Date, and the Aggregate Cut-off Date Balance shall be within the
range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"),
in such forms as are agreed upon and acceptable to the Purchaser
and, in
the case of the Pooling and Servicing Agreement (insofar as such
Agreement
affects the obligations of the Seller hereunder) and other
documents to be
delivered by or on behalf of the Purchaser, to the Seller, shall
be duly
executed and delivered by all signatories as required pursuant
to the
respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee,
the Purchaser or the Purchaser's designee, as the case may be,
all
documents and funds required to be so delivered on or before the
Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser
pursuant to
Section 3 shall be satisfactory to the Purchaser in its
reasonable
determination;
(v) 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 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;
(vi) The Seller shall have received the Mortgage Loan
Purchase
Price, and the Seller shall have paid or agreed to pay all fees,
costs and
expenses payable by it to the Purchaser pursuant to this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with
its
terms.
Both parties agree to use their best efforts to perform
their
respective obligations hereunder in a manner that will enable
the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement and a bill of sale duly executed and
delivered by
the Purchaser and the Seller;
(b) An Officer's Certificate substantially in the form of
Exhibit D
hereto, executed by the Secretary or an assistant secretary of
the Seller, and
dated the Closing Date, and upon which the Purchaser, the
Initial Purchasers and
each Underwriter may rely, attaching thereto as an exhibit the
By-Laws of the
Seller;
(c) (c) A certificate of good standing regarding the Seller from
the
Secretary of State for the State of California, dated not
earlier than 30 days
prior to the Closing Date;
(d) Written opinions of counsel (which may include opinions
of
in-house counsel, outside counsel or a combination thereof) for
the Seller, in
form reasonably acceptable to counsel for the Purchaser and
subject to such
reasonable assumptions and qualifications as may be requested by
counsel for the
Seller and acceptable to counsel for the Purchaser, dated the
Closing Date and
addressed to the Purchaser, the Initial Purchasers and each
Underwriter;
(e) Any other opinions of counsel for the Seller reasonably
requested by the Rating Agencies in connection with the issuance
of the
Certificates, each of which shall include the Purchaser, the
Initial Purchasers
and each Underwriter as an addressee; and
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 9. Costs.
The Seller shall pay (or shall reimburse the Purchaser to the
extent
that the Purchaser has paid) (a) the fees and expenses of
counsel to the Seller,
(b) the expenses of filing or recording UCC assignments of
financing statements,
assignments of Mortgage and Reassignments of Assignments of
Leases, Rents and
Profits with respect to the Mortgage Loans as contemplated by
Article 2 of the
Pooling and Servicing Agreement and (c) on the Closing Date, the
Seller's pro
rata portion of the aggregate of the following amounts (the
Seller's pro rata
portion to be determined according to the percentage that the
aggregate
principal balance of the Mortgage Loans as of the Cut-off Date
represents of the
aggregate principal balance of the Mortgage Loans and the Other
Mortgage Loans
as of the Cut-off Date): (i) the costs and expenses of printing
(or otherwise
reproducing) and delivering a preliminary and final Prospectus
relating to the
Certificates; (ii) the up front fees, costs, and expenses of the
Trustee
(including reasonable attorneys' fees) incurred in connection
with the Trustee
entering into and performing certain of its obligations under
the Pooling and
Servicing Agreement; (iii) the filing fee charged by the
Securities and Exchange
Commission for registration of the Certificates so registered;
(iv) the fees
charged by the Rating Agencies to rate the Certificates so
rated; (v) the fees
and expenses of counsel to the Underwriters; (vi) the fees and
expenses of
counsel to the Purchaser; (vii) the fees and expenses of counsel
to the Capmark
Master Servicer; (viii) the cost of obtaining a "comfort letter"
from a firm of
certified public accountants selected by the Purchaser and the
Seller with
respect to numerical information in respect of the Mortgage
Loans and the Other
Mortgage Loans included in the Prospectus; and (ix) other
miscellaneous costs
and expenses agreed upon by the parties hereto. All other costs
and expenses in
connection with the transactions contemplated hereunder shall be
borne by the
party incurring such expense.
SECTION 10. Notices.
All demands, notices and communications 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 overnight mail or courier service and
received by the
addressee or (d) transmitted by facsimile (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 Deutsche Mortgage & Asset Receiving
Corporation, 60 Wall Street,
New York, New York 10005, Attention: Lainie Kaye, facsimile no.
(212) 797-4487,
with a copy to Anna Glick, Esq., Cadwalader, Wickersham &
Taft LLP, One World
Financial Center, New York, New York 10281, facsimile no. (212)
504-6822, or
such other address or facsimile number as may hereafter be
furnished to the
Seller in writing by the Purchaser; and if (ii) to the Seller,
addressed to
Capmark Finance Inc., 200 Witmer Road, Horsham, Pennsylvania
141044, Attention:
David Lazarus, facsimile number (215) 328-1775, with a copy to
Capmark Finance
Inc., 200 Witmer Road, Horsham, Pennsylvania 141044, Attention:
Legal
Department, facsimile no. (215) 682-0962 or to such other
address or facsimile
number as the Seller may designate in writing to the
Purchaser.
SECTION 11. Notice of Exchange Act Reportable Events.
The Seller hereby agrees to deliver to the Purchaser and the
Trustee
the disclosure required, as to the Seller itself, under Items
1117 and 1119 of
Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
reasonable efforts
to deliver proposed disclosure language relating to any event,
specifically
relating to the Seller, described under Items 1117 and 1119 of
Regulation AB and
Item 1.03 to Form 8-K to the Trustee and the Purchaser as soon
as reasonably
practicable after the Seller becomes aware of such event and in
no event more
than
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