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Exhibit 10.3
Capmark Mortgage Loan Purchase Agreement
See attached
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated
and effective as of November 1, 2007, between Capmark Finance
Inc., a California
corporation ("Capmark"), as seller (in such capacity, together
with its
successors and permitted assigns hereunder, the "Seller"), and
Credit Suisse
First Boston Mortgage Securities Corp., a Delaware corporation
(the
"Depositor"), as purchaser (in such capacity, together with its
successors and
permitted assigns hereunder, the "Purchaser").
RECITALS
Capmark desires to sell, assign, transfer, set over and
otherwise
convey to the Depositor, without recourse, and the Depositor
desires to
purchase, subject to the terms and conditions set forth herein,
the multifamily
and commercial mortgage loans (or, with respect to the Albers
Mill Loan and the
Hilton-Ontario Loan, the related Loan REMIC Regular Interests)
(collectively,
the "Mortgage Loans") identified on the schedule annexed hereto
as Exhibit A
(the "Mortgage Loan Schedule"), as such schedule may be amended
from time to
time pursuant to the terms hereof.
The Depositor intends to create a trust (the "Trust"), the
primary
assets of which will be a segregated pool of multifamily and
commercial mortgage
loans that includes the Mortgage Loans. Beneficial ownership of
the assets of
the Trust (such assets collectively, the "Trust Fund") will be
evidenced by the
Certificates (as defined below). Certain classes of the
Certificates will be
rated by Standard & Poor's Ratings Services, a division of
The McGraw-Hill
Companies, Inc. and Fitch Ratings, Inc. (together, the "Rating
Agencies"). The
Trust will be created and the Certificates will be issued
pursuant to a pooling
and servicing agreement to be dated as of November 1, 2007 (the
"Pooling and
Servicing Agreement"), among the Depositor, as depositor,
Capmark Finance Inc.
and KeyCorp Real Estate Capital Markets Inc., as master
servicers (each a
"Master Servicer" and collectively the "Master Servicers" ),
Centerline
Servicing Inc., as special servicer (in such capacity, the
"Special Servicer"),
and Wells Fargo Bank, N.A., as trustee (in such capacity,
together with any
successor as trustee, the "Trustee"), relating to the issuance
of Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through
Certificates, Series 2007-C5 (the "Certificates"). Capitalized
terms used but
not otherwise defined herein shall have the respective meanings
assigned to them
in the Pooling and Servicing Agreement as in full force and
effect on the
Closing Date (as defined in Section 1 hereof). It is anticipated
that the
Depositor will transfer the Mortgage Loans to the Trust
contemporaneously with
its purchase of the Mortgage Loans hereunder.
The Depositor intends to sell certain classes of the
Certificates
(collectively, the "Publicly Offered Certificates") to Credit
Suisse Securities
(USA) LLC ("Credit Suisse Securities") and the other
underwriters that are
parties to the Underwriting Agreement (as defined below)
(collectively in such
capacity, the "Underwriters"), pursuant to an underwriting
agreement dated as of
November 1, 2007 (the "Underwriting Agreement"), between the
Depositor, Credit
Suisse Securities (USA) LLC, KeyBanc Capital Markets Inc. (other
than with
respect to the Class A-4 Certificates), Capmark Securities Inc.
and J.P. Morgan
Securities Inc.. The Depositor intends to sell certain classes
of the remaining
Certificates (the "Privately Offered Certificates") to Credit
Suisse Securities,
pursuant to a certificate purchase agreement dated as of
November 1, 2007 (the
"Certificate Purchase Agreement"), between the Depositor and
Credit Suisse
Securities (in such capacity, the "Initial Purchaser"). The
Publicly Offered
Certificates are more fully described in a prospectus dated
November 1, 2007
(the "Base Prospectus"), and the supplement to the Base
Prospectus dated
November 1, 2007 (the "Prospectus Supplement"; and, together
with the Base
Prospectus, the "Prospectus"), as each may be amended or
supplemented at any
time hereafter. The Privately Offered Certificates are more
fully described in a
confidential offering circular dated November 1, 2007 (the
"Confidential
Offering Circular"), as it may be amended or supplemented at any
time hereafter.
Capmark will indemnify the Depositor, Credit Suisse Securities
(both
in its capacity as an Underwriter and in its capacity as the
Initial Purchaser),
the other Underwriters and certain related parties with respect
to the
disclosure regarding the Mortgage Loans contained in the
Prospectus, the
Confidential Offering Circular and certain other disclosure
documents and
offering materials relating to the Certificates, pursuant to an
indemnification
agreement dated November 1, 2007 (the "Indemnification
Agreement"), among
Capmark, the Depositor, Credit Suisse Securities (both in its
capacity as an
Underwriter and in its capacity as the Initial Purchaser) and
the other
Underwriters.
NOW, THEREFORE, in consideration of the premises and the
mutual
agreements set forth herein, the parties agree as follows:
SECTION 1 Agreement to Purchase. The Seller agrees to sell,
assign,
transfer, set over and otherwise convey to the Purchaser,
without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the
Seller's
transfer of the related servicing rights as provided in the
Servicing Rights
Purchase Agreement dated as of November 1, 2007 (the "Servicing
Rights Purchase
Agreement") between the Seller and Capmark Finance Inc. and
subject to the terms
and conditions set forth herein, the Mortgage Loans, other than
any rights of
the lender under the related Mortgage Loan Documents to
establish and/or own a
successor borrower in connection with a defeasance of a Mortgage
Loan. The
purchase and sale of the Mortgage Loans shall take place on
November 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 respective
Due Dates for the
Mortgage Loans in November 2007 (individually and collectively,
the "Cut-off
Date"), the Mortgage Loans will have an aggregate principal
balance, after
application of all payments of principal due on the Mortgage
Loans on or before
the Cut-off Date, whether or not received, as set forth in the
Mortgage Loan
Schedule attached hereto as Exhibit A. Seller shall sell to
Depositor, and
Depositor shall purchase from Seller, the Mortgage Loans
pursuant to this
Agreement for the Mortgage Loan Purchase Price (as defined
herein), which
includes accrued interest on the Mortgage Loans at their
respective Net Mortgage
Rates from and including the Cut-off Date to but not including
the Closing Date,
and the Purchaser shall pay such purchase price to the Seller on
the Closing
Date by wire transfer in immediately available funds to an
account designated by
the Seller or by such other method as shall be mutually
acceptable to the
parties hereto. The "Mortgage Loan Purchase Price" paid by
Depositor shall be
equal to the amount that the Depositor and the Seller have
mutually agreed upon.
SECTION 2 Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
purchase price referred to in Section 1 hereof and the other
conditions to the
Seller's obligations set forth herein, the Seller does hereby
sell, assign,
transfer, set over and otherwise convey to the Purchaser,
subject to the
Seller's transfer of the related servicing rights as provided in
the Servicing
Rights Purchase Agreement, without recourse, all of the right,
title and
interest of the Seller in and to the Mortgage Loans other than
any rights of the
lender under the related Mortgage Loan Documents to establish
and/or own a
successor borrower in connection with a defeasance of a Mortgage
Loan.
(b) The Purchaser shall be entitled to receive 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 (other than scheduled payments of principal and
interest due on
the Mortgage Loans on or before the Cut-off Date and collected
after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its
expense,
subject to Section 19, deliver to and deposit with, or cause to
be delivered to
and deposited with, the Purchaser or its designee the Mortgage
File and any
Additional Collateral (other than reserve funds and escrow
payments) with
respect to each Mortgage Loan; provided, however, that in
connection with the
delivery of the Mortgage File, the original of each Letter of
Credit (and any
related amendment or assignment), if any, shall be delivered to
the applicable
Master Servicer and a copy thereof shall be delivered to the
Trustee or its
designated Custodian. In addition, with respect to each Mortgage
Loan as to
which any Additional Collateral is in the form of a Letter of
Credit as of the
Closing Date, the Seller shall cause to be prepared, executed
and delivered to
the issuer of each such Letter of Credit such notices,
assignments and
acknowledgments as are required under such Letter of Credit to
assign, without
recourse, to the Trustee (whether by actual assignment or by
amendment of the
Letter of Credit) the Seller's rights as the beneficiary thereof
and drawing
party thereunder. Unless the Purchaser notifies the Seller in
writing to the
contrary, the designated recipient of the items described in the
second
preceding sentence (subject to the proviso to that sentence),
and the designated
beneficiary under each Letter of Credit referred to in the
preceding sentence,
shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original
or
certified recorded or filed document or original policy of title
insurance which
is to be delivered as part of the related Mortgage File for any
Mortgage Loan
solely because the Seller is delayed in making such delivery by
reason of the
fact that such original or certified recorded or filed document
has not been
returned by the appropriate recording or filing office or such
original policy
of title insurance has not yet been issued, then the Seller
shall deliver such
documents to the Purchaser or its designee, promptly upon the
Seller's receipt
thereof.
In addition, the Seller shall, at its expense, deliver to
and
deposit with, or cause to be delivered to and deposited with,
the Purchaser or
its designee, within three (3) Business Days after the Closing
Date, the
following items (except to the extent that any of the following
items are to be
retained by a subservicer that will continue to act on behalf of
the Purchaser
or its designee): (i) originals or copies of all financial
statements,
appraisals, environmental/ engineering reports, leases, rent
rolls, third-party
underwriting reports, insurance policies, legal opinions, tenant
estoppels and
any other documents that the Purchaser or its servicing agent
reasonably deems
necessary to service the subject Mortgage Loan in the possession
or under the
control of the Seller that relate to the Mortgage Loans, copies
of all documents
required to be delivered by the Seller to the Purchaser or its
designee as a
part of a Mortgage File and, to the extent they are not required
to be a part of
a Mortgage File for any Mortgage Loan, originals or copies of
all documents,
certificates and opinions in the possession or under the control
of the Seller
that were delivered by or on behalf of the related Borrowers in
connection with
the origination of the Mortgage Loans (provided that the Seller
shall not be
required to deliver any attorney-client privileged communication
or any other
documents or materials prepared by the Seller or its Affiliates
solely for
internal credit analysis and/or other internal uses); and (ii)
all unapplied
reserve funds and escrow payments in the possession or under the
control of the
Seller that relate to the Mortgage Loans. Unless the Purchaser
notifies the
Seller in writing to the contrary, the designated recipient of
the items
described in clauses (i) and (ii) of the preceding sentence
shall be the
applicable Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to
deliver
any Letter of Credit constituting Additional Collateral for any
Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the
related Borrower,
to be used for the same purposes as such missing Letter of
Credit either: (i) a
substitute letter of credit substantially comparable to, but in
all cases in the
same amount and with the same draw conditions and renewal rights
as, that Letter
of Credit and issued by an obligor that meets any criteria in
the related
Mortgage Loan Documents applicable to the issuer of that Letter
of Credit; or
(ii) a cash reserve in an amount equal to the amount of that
Letter of Credit.
For purposes of the delivery requirements of this Section 2(c),
any such
substitute letter of credit shall be deemed to be Additional
Collateral of the
type covered by the first paragraph of this Section 2(c) and any
such cash
reserve shall be deemed to be reserve funds of the type covered
by the third
paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section
2(c),
the Seller shall receive copies, or otherwise be the
beneficiary, of all
certifications relating to the Mortgage Loans made and/or
delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the
Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees
and
out-of-pocket costs and expenses associated with recording
and/or filing any and
all assignments and other instruments of transfer with respect
to the Mortgage
Loans that are required to be recorded or filed, as the case may
be, under the
Pooling and Servicing Agreement; provided that subject to the
next paragraph,
the Seller shall not be responsible for actually recording or
filing any such
assignments or other instruments of transfer. If the Seller
receives written
notice that any such assignment or other instrument of transfer
is lost or
returned unrecorded or unfiled, as the case may be, because of a
defect therein,
the Seller shall prepare or cause the preparation of a
substitute therefor or
cure such defect, as the case may be; provided that the cost of
such preparation
shall be borne by the Purchaser if the loss or return is caused
by the
Purchaser's negligence. The Seller shall provide the Purchaser
or its designee
with a power of attorney to enable it or them to record any loan
documents that
the Purchaser has been unable to record. Unless the Purchaser
notifies the
Seller in writing to the contrary, the designated recipients of
the power of
attorney referred to in the preceding sentence shall be the
Trustee.
Notwithstanding the immediately preceding paragraph, the Seller
may,
at its sole cost and expense, engage a third-party contractor to
prepare or
complete in proper form for filing and recording any and all of
the assignments
and other instruments described in the immediately preceding
paragraph,
including assignments of UCC Financing Statements, with respect
to the Mortgage
Loans, to submit such assignments and instruments for filing and
recording, as
the case may be, in the applicable public filing and recording
offices and to
deliver such assignments and instruments to the Trustee or its
designee as such
assignments and other instruments (or certified copies thereof)
are received
from the applicable filing and recording offices with evidence
of such filing
and recording indicated thereon. However, in the event the
Seller engages a
third-party contractor as contemplated in the immediately
preceding sentence,
the rights, duties and obligation of the Seller pursuant to this
Agreement
remain binding on the Seller.
(e) Upon the sale of Certificates representing at least 10% of
the
total principal balance of all the Certificates to unaffiliated
third parties,
the Seller shall, under GAAP, report its transfer of the
Mortgage Loans to the
Purchaser, as provided herein, as a sale of the Mortgage Loans
to the Purchaser
in exchange for the consideration specified in Section 1 hereof.
In connection
with the foregoing, upon sale of Certificates representing at
least 10% of the
total principal balance of all the Certificates to unaffiliated
third parties,
the Seller shall cause all of its financial and accounting
records to reflect
such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any
action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for
actions that
are the express responsibility of another party hereunder or
under the Pooling
and Servicing Agreement, and further except for actions that the
Seller is
expressly permitted to complete subsequent to the Closing Date,
the Seller
shall, on or before the Closing Date, take all actions required
under applicable
law to effectuate the transfer of the Mortgage Loans by the
Seller to the
Purchaser.
SECTION 3 Examination of Mortgage Loan Files and Due
Diligence
Review. The Seller shall reasonably cooperate with any
examination of the
Mortgage Files for, and any other documents and records relating
to, the
Mortgage Loans 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 any of the Mortgage Files for, and/or
any of such other
documents and records relating to, the Mortgage Loans, shall not
affect the
Purchaser's right to pursue any remedy available in equity or at
law for a
breach of the Seller's representations and warranties made
pursuant to Section 4
(subject, however, to Section 7).
SECTION 4 Representations, Warranties and Covenants of the
Seller
and the Purchaser.
(a) The Seller hereby makes, as of the date hereof, to and for
the
benefit of the Purchaser, each of the representations and
warranties set forth
in Exhibit B-1. The Purchaser hereby makes, as of the date
hereof, to and for
the benefit of the Seller, each of the representations and
warranties set forth
in Exhibit B-2.
(b) 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, with respect to each
Mortgage Loan,
each of the representations and warranties set forth in Exhibit
C, subject,
however, to the exceptions set forth in Schedule C-1 hereto and
Section 19.
(c) The Seller hereby represents and warrants, as of the
date
hereof, to and for the benefit of the Depositor only, that the
Seller has not
dealt with any broker, investment banker, agent or other person
(other than the
Depositor, Credit Suisse Securities and the other Underwriters)
who may be
entitled to any commission or compensation in connection with
the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make, as
of
the date of substitution, to and for the benefit of the
Purchaser, with respect
to any replacement mortgage loan (a "Replacement Mortgage Loan")
that is
substituted for a defective Mortgage Loan pursuant to Section 7
of this
Agreement, each of the representations and warranties set forth
in Exhibit C
(subject to any exceptions disclosed at such time) (with
references in such
exhibits to "Closing Date" being deemed to be references to the
"date of
substitution," references in such exhibits to "Cut-off Date"
being deemed to be
references to the "most recent Due Date for the subject
Replacement Mortgage
Loan on or before the date of substitution" and references in
such exhibits to
"November 2007" and "April 2007" being deemed to be references
to the "month of
substitution" and the "month preceding the month of
substitution,"
respectively). From and after the date of substitution, each
Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder
for all purposes.
(e) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall
survive
delivery of the respective Mortgage Files to the Purchaser or
its designee and
shall inure to the benefit of the Purchaser for so long as any
of the Mortgage
Loans remain outstanding, notwithstanding any restrictive or
qualified
endorsement or assignment.
(f) At the Time of Sale (as defined in the Indemnification
Agreement), the information set forth in any Disclosure
Information (as defined
in the Indemnification Agreement), as last forwarded to each
prospective
investor at or prior to the date on which a contract for sale
was entered into
with such prospective investor, (i) does not contain any untrue
statement of a
material fact or omit to state any material fact necessary to
make the
statements therein, in light of the circumstances under which
they were made,
not misleading and (ii) complies with the requirements of and
contains all of
the applicable information required by Regulation AB (as defined
in the
Indemnification Agreement); but only to the extent that (i) such
information
regards the Mortgage Loans and is contained in the Master Tape
(as defined in
the Indemnification Agreement) or, to the extent consistent
therewith, the
Diskette (as defined in the Indemnification Agreement) or (ii)
such information
regarding the Seller or the Mortgage Loans was contained in the
Confidential
Offering Circular or the Prospectus Supplement under the
headings "Summary of
Prospectus Supplement--Relevant Parties/Entities--Sponsors and
Mortgage Loan
Sellers," "--Relevant Parties/Entities--Originators," "--The
Underlying Mortgage
Loans" and "--Source of the Underlying Mortgage Loans," "Risk
Factors,"
"Description of the Sponsors and Mortgage Loan Sellers" and
"Description of the
Underlying Mortgage Loans" and such information does not
represent an incorrect
restatement or an incorrect aggregation of correct information
regarding the
Mortgage Loans contained in the Master Tape (as defined in the
Indemnification
Agreement); provided that, the Seller makes no representation or
warranty to the
extent that any such untrue statement or omission or alleged
untrue statement or
omission was made as a result of an error in the manipulation
of, or an error in
any calculations based upon, or an error in any aggregation
(other than an
aggregation made in the Master Tape by the Seller) of, the
numerical, financial
and/or statistical information regarding the Mortgage Loan
Seller Information
(as defined in the Indemnification Agreement).
SECTION 5 Closing Documents. The Closing Documents shall consist
of
the following:
(i) this Agreement, duly executed by the Purchaser and the
Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective
parties
thereto;
(iii) an Officer's Certificate substantially in the form of
Exhibit
D-1 hereto, executed by the Secretary or an Assistant Secretary
of the
Seller, in his or her individual capacity on behalf of the
Seller, and
dated the Closing Date, and upon which the Depositor, Credit
Suisse
Securities, the other Underwriters and the Rating Agencies
(collectively,
for purposes of this Section 5, the "Interested Parties") may
rely,
attaching thereto as exhibits (A) the resolutions of the board
of
directors of the Seller authorizing the Seller's entering into
the
transactions contemplated by this Agreement and (B) the
organizational
documents of the Seller;
(iv) a certificate of good standing with respect to the
Seller
issued by the Secretary of State of the State of California not
earlier
than 30 days prior to the Closing Date, and upon which the
Interested
Parties may rely;
(v) a Certificate of the Seller substantially in the form of
Exhibit
D-2 hereto, executed by an executive officer of the Seller on
the Seller's
behalf and dated the Closing Date, and upon which the Interested
Parties
may rely;
(vi) a written opinion or opinions of counsel for the Seller
(which
may include an opinion of in-house counsel), dated the Closing
Date and
addressed to the Interested Parties and the respective parties
to the
Pooling and Servicing Agreement, which opinion shall be in form
reasonably
acceptable to the Purchaser and shall cover such corporate and
other
matters as shall be reasonably required by the Purchaser;
(vii) one or more comfort letters from Ernst & Young LLP,
certified
public accountants, dated the date of any preliminary
Prospectus
Supplement and of the Prospectus Supplement, respectively, and
addressed
to, and in form and substance acceptable to, the Depositor,
Credit Suisse
Securities, the other Underwriters and their respective counsel,
stating
in effect that, using the assumptions and methodology used by
the
Depositor, all of which shall be described in such letters, they
have
recalculated such numbers and percentages relating to the
Mortgage Loans
set forth in any preliminary Prospectus Supplement and the
Prospectus
Supplement, compared the results of their calculations to
the
corresponding items in any preliminary Prospectus Supplement and
the
Prospectus Supplement, respectively, and found each such number
and
percentage set forth in any preliminary Prospectus Supplement
and the
Prospectus Supplement, respectively, to be in agreement with the
results
of such calculations;
(viii) such further certificates, opinions and documents as
the
Purchaser may reasonably request or any Rating Agency may
require;
(ix) a written certificate or certificates of the Purchaser
dated
the Closing Date in form acceptable to the Seller confirming
the
Purchaser's representations and warranties in Section 4 of this
Agreement
as of the Closing Date, with the resolutions of the Purchaser
authorizing
the transactions set forth herein, together with copies of
the
organizational documents and certificate of good standing dated
not
earlier than 30 days prior to the Closing Date of the Purchaser;
and
(x) such other certificates of the Purchaser's officers,
such
opinions of the Purchaser's counsel (which may include in-house
counsel)
and such other documents required to evidence fulfillment of
the
conditions set forth in this Agreement as the Seller or its
counsel may
reasonably request.
SECTION 6 Closing. The closing of the 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, or at
such other
location as agreed upon between the parties hereto, 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 each of the
Seller
and the Purchaser made pursuant to Section 4 of this Agreement
(subject,
in the case of the Seller, to the exceptions set forth in
Schedule C-1
hereto) shall be true and correct in all material respects as of
the
Closing Date;
(ii) all documents specified in Section 5 of this Agreement
(the
"Closing Documents"), in such forms as are agreed upon and
reasonably
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), 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
Purchaser
or its designee, all documents, funds and other assets required
to be
delivered thereto on or before the Closing Date pursuant to
Section 2 of
this Agreement;
(iv) the result of any examination of the Mortgage Files for,
and
any other documents and records relating to, the Mortgage Loans
performed
by or on behalf of the Purchaser pursuant to Section 3 hereof
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
in all material respects, 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 by it after the
Closing Date;
(vi) the Seller shall have paid all fees and expenses payable by
it
to the Purchaser or otherwise pursuant to this Agreement;
(vii) the Seller shall have received the purchase price for
the
Mortgage Loans, as contemplated by Section 1; and
(viii) neither the Underwriting Agreement nor the
Certificate
Purchase Agreement shall have been terminated in accordance with
its
terms.
Both parties agree to use their commercially reasonable 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 7 Obligations of Seller. Each of the representations
and
warranties contained in or required to be made by Seller
pursuant to Section 4
of this Agreement shall survive the sale of the Mortgage Loans
and shall
continue in full force and effect, notwithstanding any
restrictive or qualified
endorsement on the Notes and notwithstanding subsequent
termination of this
Agreement or the Pooling and Servicing Agreement. The
representations and
warranties contained in or required to be made by Seller
pursuant to Section 4
of this Agreement shall not be impaired by any review or
examination of the
Mortgage Files or other documents evidencing or relating to the
Mortgage Loans
or any failure on the part of Depositor to review or examine
such documents and
shall inure to the benefit of the initial transferee of the
Mortgage Loans from
Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment
of Assignment of
Leases but shall not inure to the benefit of any subsequent
transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit C hereto and
made by the
Seller with respect to any Mortgage Loan listed on Exhibit A
hereto, as of the
date hereof in Section 4(b) or as of the Closing Date, or with
respect to any
Replacement Mortgage Loan, as of the date of substitution
pursuant to Section
4(d) (in any such case, a "Breach"), or receives notice that (A)
any document
required to be included in the Mortgage File related to any
Mortgage Loan is not
in the Trustee's possession within the time period required
herein or (B) such
document has not been properly executed or is otherwise
defective on its face
(the circumstances in the foregoing clauses (A) and (B), in each
case, a
"Defect" (including the "Defects" described below) in the
related Mortgage
File), and if such Breach or Defect, as the case may be,
materially and
adversely affects the value of the related Mortgage Loan or any
successor REO
Loan or the interests of the Certificateholders therein (any
Breach or Defect
that materially and adversely affects the value of the related
Mortgage Loan or
the interests of the Certificateholders therein, a "Material
Breach" and a
"Material Defect", respectively), then the Seller shall, upon
request of the
Depositor, the Trustee, the Master Servicer or the Special
Servicer, not later
than the earlier of 90 days from the receipt by the Seller of
such request
(subject to the second succeeding paragraph, the "Initial
Resolution Period"):
(i) cure such Material Breach or Material Defect, as the case
may be, in all
material respects; (ii) repurchase the affected Mortgage Loan at
the applicable
Purchase Price (as defined in the Pooling and Servicing
Agreement); or (iii)
substitute, in accordance with the Pooling and Servicing
Agreement, one or more
Qualified Substitute Mortgage Loans (as defined in the Pooling
and Servicing
Agreement) for such affected Mortgage Loan (provided that in no
event shall any
substitution occur later than the second anniversary of the
Closing Date) and
pay the Master Servicer for deposit into the Collection Account
any Substitution
Shortfall Amount (as defined in the Pooling and Servicing
Agreement) in
connection therewith; provided, however, that if (i) such
Material Breach or
Material Defect is capable of being cured but not within the
Initial Resolution
Period, (ii) such Material Breach or Material Defect does not
cause the related
Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section
860G(a) 3) of the Code), (iii) the Seller has commenced and is
diligently
proceeding with the cure of such Material Breach or Material
Defect within the
Initial Resolution Period and (iv) the Seller has delivered to
the Rating
Agencies, the Master Servicer, the Special Servicer and the
Trustee an Officer's
Certificate that describes the reasons that the cure was not
effected within the
Initial Resolution Period and the actions that it proposes to
take to effect the
cure and that states that it anticipates the cure will be
effected within the
additional 90-day period, then the Seller shall have an
additional 90 days to
cure such Material Defect or Material Breach. With respect to
any substitution
of one or more Qualified Substitute Mortgage Loans for a
Mortgage Loan
hereunder, (A) no such substitution may be made in any calendar
month after the
Determination Date for such month; (B) scheduled payments of
principal and
interest due with respect to the Qualified Substitute Mortgage
Loan(s) after the
related date of substitution shall be part of the Trust Fund;
and (C) scheduled
payments of principal and interest due with respect to such
Qualified Substitute
Mortgage Loan(s) on or prior to the related date of substitution
shall not be
part of the Trust Fund, and the Seller shall be entitled to
receive such
payments promptly following receipt by the Master Servicer or
Special Servicer,
as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File
to
be deemed to have a "Defect" and to be conclusively presumed to
materially and
adversely affect the interests of Certificateholders in and the
value of a
Mortgage Loan: (a) the absence from the Mortgage File of the
original signed
Note, unless the Mortgage File contains a signed lost note
affidavit and
indemnity; (b) the absence from the Mortgage File of the
original signed
Mortgage, unless there is included in the Mortgage File a
certified copy of the
Mortgage as recorded or as sent for recordation, together with a
certificate
stating that the original signed Mortgage was sent for
recordation, or a copy of
the Mortgage and the related recording information; (c) the
absence from the
Mortgage File of the item called for by paragraph (ix) of the
definition of
Mortgage File in Section 1.01 of the Pooling and Servicing
Agreement; (d) the
absence from the Mortgage File of any intervening assignments
required to create
an effective assignment to the Trustee on behalf of the Trust,
unless there is
included in the Mortgage File a certified copy of the
intervening assignment and
a certificate stating that the original intervening assignments
were sent for
recordation; (e) the absence from the Mortgage File of any
required original
letter of credit, provided that such Defect may be cured by any
substitute
letter of credit or cash reserve on behalf of the related
Borrower; or (f) the
absence from the Mortgage File of the original or a copy of any
required ground
lease. The absence of a document checklist from a Mortgage File
shall in no
event constitute a Material Defect.
Any Defect or Breach which causes any Mortgage Loan not to be
a
"qualified mortgage" (within the meaning of Section 860G(a) 3)
of the Code)
shall be deemed to materially and adversely affect the interest
of
Certificateholders therein and the Initial Resolution Period for
the affected
Mortgage Loan shall be 90 days following the earlier of (a)
notice to Seller of
the discovery of such Defect or Breach by any party to the
Pooling and Servicing
Agreement or (b) Seller's discovery of such Defect or Breach
(which period shall
not be subject to extension).
If the Seller does not, as required by this Section 7, correct
or
cure a Material Breach or a Material Defect in all material
respects within the
applicable Initial Resolution Period (as extended pursuant to
this Section 7),
or if such Breach or Defect is not capable of being so corrected
or cured within
such period, then the Seller shall purchase or substitute for
the affected
Mortgage Loan as provided in this Section 7. If (i) any Mortgage
Loan is
required to be repurchased or substituted for as provided above,
(ii) such
Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as
defined below) and (iii) the applicable Breach or Defect does
not constitute a
Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in
such Mortgage Group (without regard to this paragraph), then the
applicable
Breach or Defect, as the case may be, will be deemed to
constitute a Breach or
Defect, as the case may be, as to any other Crossed Mortgage
Loan in the
Mortgage Group for purposes of the above provisions, and the
Seller will be
required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in
the related Mortgage Group in accordance with the provisions of
this Section 7
unless the Crossed Mortgage Loan Repurchase Criteria would be
satisfied if
Seller were to repurchase or substitute for only the affected
Crossed Mortgage
Loans as to which a Material Breach or Material Defect had
occurred without
regard to this paragraph, and in the case of either such
repurchase or
substitution, all of the other requirements set forth in the
Pooling and
Servicing Agreement applicable to a repurchase or substitution,
as the case may
be, would be so satisfied. In the event that the Crossed
Mortgage Loan
Repurchase Criteria would be so satisfied, the Mortgage Loan
Seller may elect
either to repurchase or substitute for only the affected Crossed
Mortgage Loan
as to which the Material Defect or Material Breach exists or to
repurchase or
substitute for the aggregated Crossed Mortgage Loans. The
determination of the
Special Servicer as to whether the Crossed Mortgage Loan
Repurchase Criteria
have been satisfied shall be conclusive and binding in the
absence of manifest
error. In the event that one or more of such other Crossed
Mortgage Loans
satisfy the Crossed Mortgage Loan Repurchase Criteria, the
Seller may elect
either to repurchase or substitute for only the affected Crossed
Mortgage Loan
as to which the related Breach or Defect exists or to repurchase
or substitute
for all of the Crossed Mortgage Loans in the related Mortgage
Group. The Seller
shall be responsible for the cost of (and, if so directed by the
Special
Servicer, obtaining) any Appraisal required for the Special
Servicer to
determine if the Crossed Mortgage Loan Repurchase Criteria have
been satisfied,
so long as the scope and cost of such Appraisal has been
approved by the Seller
(such approval not to be unreasonably withheld). For purposes of
this paragraph,
a "Mortgage Group" is any group of Mortgage Loans identified as
a Mortgage Group
on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach
or
Material Defect with respect to one or more Mortgaged Properties
(but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, the
Seller will not
be obligated to repurchase or substitute for the entire Mortgage
Loan if the
Mortgaged Loan may, pursuant to the terms of the related
Mortgage Loan
Documents, be severed to allow for the repurchase of a portion
of the Mortgage
Loan representing the affected Mortgaged Property and the
Mortgage Loan
remaining after such severance satisfies the requirements, if
any, set forth in
the Mortgage Loan Documents and (i) the Seller provides an
opinion of counsel to
the effect that such partial release would not cause an Adverse
REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii)
such Seller pays
(or causes to be paid) the applicable release price required
under the Mortgage
Loan Documents and, to the extent not reimbursable out of the
release price
pursuant to the related Mortgage Loan Documents, any additional
amounts
necessary to cover all reasonable out-of-pocket expenses
reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund in
connection therewith, including any unreimbursed advances and
interest thereon
made with respect to the Mortgaged Property that is being
released, and (iii)
such cure by release of such Mortgaged Property is effected
within the time
periods specified for cure of a Material Breach or Material
Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the
Depositor or,
subsequent to the assignment of the Mortgage Loans to the
Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds
to the account
designated by the Depositor or the Trustee, as the case may be,
and the
Depositor or the Trustee, as the case may be, upon receipt of
such funds (and,
in the case of a substitution, the Mortgage File(s) for the
related Qualified
Substitute Mortgage Loans), shall promptly release the related
Mortgage File and
Servicer File (and all other documents pertaining to such
Mortgage Loan
possessed by the Depositor or the Trustee, as applicable, or on
its behalf, but
excluding any draft documents, attorney/client privileged
communications and
documents prepared by the Depositor or the Trustee, as
applicable, or any of its
Affiliates solely for internal communication) or cause them to
be released, to
Seller and shall execute and deliver such instruments of
transfer, endorsement
or assignment as shall be necessary to vest in the Seller the
legal and
beneficial ownership of such Mortgage Loan (including any
property acquired in
respect thereof or proceeds of any insurance policy with respect
thereto) and
the related Mortgage Loan Documents and shall deliver to Seller
any escrow
payments and reserve funds held by it, or on its behalf, with
respect to such
repurchased or replaced Mortgage Loan.
It is understood and agreed that the obligations of the Seller
set
forth in this Section 7 to cure, substitute for or repurchase a
Mortgage Loan
listed on Exhibit A hereto constitute the sole remedies
available to the
Depositor and its successors and assigns against Seller
respecting any Breach or
Defect affecting such Mortgage Loan.
SECTION 8 Costs. Whether or not this Agreement is terminated,
except
to the extent otherwise specifically provided in this Agreement,
the costs and
expenses incurred in connection with the transactions herein
contemplated shall
be allocated between the parties hereto as provided in any terms
letter
agreement or other agreement between them which pertains to such
transactions.
SECTION 9 Notices. All demands, notices and communications
hereunder
shall be in writing, shall be effective only upon receipt by the
Purchaser or
the Seller, as applicable, and shall be personally delivered,
mailed, by
registered mail, postage prepaid, delivered by overnight mail or
courier
service, or transmitted by facsimile and confirmed to the sender
and (a) if to
the Purchaser, addressed to the Purchaser at 11 Madison Avenue,
5th Floor, New
York, New York 10010, Attention: Edmond Taylor, with a copy to
Casey McCutcheon,
Esq., Legal & Compliance Department, Telecopy No.: (917)
326-8433, or such other
address or telecopy number as may be designated by the Purchaser
to the Seller
in writing, or (b) if to the Seller, addressed to the Seller at
116 Welsh Road,
Horsham, Pennsylvania 19044, Attention: David M. Lazarus,
Telecopy No.: (215)
328-1775, or such other address as may be designated by the
Seller to the
Purchaser in writing.]
SECTION 10 Notice of Exchange Act Reportable Events. The
Seller
hereby agrees to deliver to the Depositor 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 commercially
reasonable efforts to
deliver proposed disclosure language relating to any such event
described under
Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K
to the Trustee
and the Depositor within one (1) Business Day of become aware of
such event
giving rise to such disclosure and in any event no later than
two (2) Business
Days of the Seller becoming aware of such event. The obligation
of the Seller to
provide the above-referenced disclosure materials will terminate
upon the filing
of the Form 15 with respect to the Trust Fund as to that fiscal
year in
accordance with Section 12.10(a) of the Pooling and Servicing
Agreement. The
Seller hereby acknowledges that the information to be provided
by it pursuant to
this Section will be used in the preparation of reports meeting
the reporting
requirements of the Trust under Section 13(a) and/or Section
15(d) of the
Exchange Act.
SECTION 11 Miscellaneous. Neither this Agreement nor any term
or
provision hereof may be changed, waived, discharged or
terminated except by a
writing signed by a duly authorized officer of the party against
whom
enforcement of such change, waiver, discharge or termination is
sought to be
enforced. This Agreement may be executed in any number of
counterparts (and by
each of the parties hereto on different counterparts), each of
which shall for
all purposes be deemed to be an original and all of which shall
together
constitute but one and the same instrument. This Agreement will
inure to the
benefit of and be binding upon the parties hereto and their
respective
successors and permitted assigns, and no other person will have
any right or
obligation hereunder. Notwithstanding any contrary provision of
this Agreement
or the Pooling and Servicing Agreement, the Purchaser shall not
consent to any
amendment of the Pooling and Servicing Agreement which will
increase the
obligations of, or otherwise adversely affect, the Seller,
without the consent
of the Seller.
SECTION 12 Characterization. The parties hereto agree that it
is
their express intent that the conveyance contemplated by this
Agreement be, and
be treated for all purposes as, a sale by the Seller of all the
Seller's right,
title and interest in and to the Mortgage Loans. The parties
hereto further
agree that it is not their intention that such conveyance be a
pledge of the
Mortgage Loans by the Seller to secure a debt or other
obligation of the Seller.
However, in the event that, notwithstanding the intent of the
parties, the
Mortgage Loans are held to continue to be property of the
Seller, then: (a) this
Agreement shall be deemed to be a security agreement under
applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be
deemed to be a
grant by the Seller to the Purchaser of a first priority
security interest in
all of the Seller's right, title and interest in and to the
Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in
accordance with
the terms thereof (other than scheduled payments of interest and
principal due
on or before the Cut-off Date) and all proceeds of the
conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities
or other
property; (c) the assignment by the Depositor to the Trustee of
its interests in
the Mortgage Loans as contemplated by Section 17 hereof shall be
deemed to be an
assignment of any security interest created hereunder; (d) the
possession by the
Purchaser of the related Mortgage Notes and such other items of
property as
constitute instruments, money, negotiable documents or chattel
paper shall be
deemed to be "possession by the secured party" for purposes of
perfecting the
Purchaser's security interest under applicable law; and (e)
notifications to,
and acknowledgments, receipts or confirmations from, persons or
entities holding
such property, shall be deemed notifications to, or
acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of the
Purchaser for the
purpose of perfecting such security interest 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 a perfected security interest of first priority under
applicable law and will
be maintained as such throughout the term of this Agreement and
the Pooling and
Servicing Agreement. In connection with the foregoing, the
Seller authorizes the
Purchaser to execute and file such UCC financing statements as
the Purchaser may
deem necessary or appropriate to accomplish the foregoing.
SECTION 13 Representations, Warranties and Agreements to
Survive
Delivery. All representations, warranties and agreements
contained in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller delivered pursuant hereto, shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser, notwithstanding (1) any restrictive or
qualified
endorsement or assignment in respect of any Mortgage Loan or (2)
any termination
of this Agreement prior to Closing.
SECTION 14 Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or is
held to be void or unenforceable shall be ineffective to the
extent of such
prohibition or unenforceability without invalidating the
remaining provisions
hereof. Any part, provision, representation, warranty or
covenant of this
Agreement that is prohibited or is held to be void or
unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be
ineffective to the
extent of such prohibition or unenforceability without
invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any
particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law,
the parties hereto waive any provision of law which prohibits or
renders void or
unenforceable any provision hereof.
SECTION 15 GOVERNING LAW; CONSENT TO JURISDICTION. THIS
AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE
PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE
LAW, THE
PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I) SUBMIT TO THE
JURISDICTION OF
ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY
WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREE
THAT ALL CLAIMS
WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH
NEW YORK STATE OR FEDERAL COURTS; (III) WAIVE, TO THE FULLEST
POSSIBLE EXTENT,
THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREE THAT A
FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 16 Further Assurances. The Seller and the Purchaser
agree to
execute and deliver such instruments and take such further
actions as the other
party may, from time to time, reasonably request in order to
effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 17 Successors and Assigns. The rights and obligations of
the
Seller under this Agreement shall not be assigned by the Seller
without the
prior written consent of the Purchaser, except that any person
into which the
Seller may be merged or consolidated, or any corporation
resulting from any
merger, conversion or consolidation to which the Seller is a
party, or any
person succeeding to all or substantially all of the business of
the Seller,
shall be the successor to the Seller hereunder. In connection
with its transfer
of the Mortgage Loans to the Trust as contemplated by the
recitals hereto, the
Depositor is expressly authorized to assign its rights and
obligations under
this Agreement, in whole or in part, to the Trustee for the
benefit of the
registered holders and beneficial owners of the Certificates. To
the extent of
any such assignment, the Trustee, for the benefit of the
registered holders and
beneficial owners of the Certificates, shall be the Purchaser
hereunder.
Notwithstanding any provision of this Agreement to the contrary,
the Trustee
shall have no authority or right to assign or transfer its
rights and
obligations under this Agreement, in whole or in part, to any
other Person
(other than a successor Trustee), regardless of whether such
assignment or
transfer is made in connection with the transfer of any Mortgage
Loan by the
Trust as contemplated by the terms of the Pooling and Servicing
Agreement, or
otherwise; provided, however, that the Trustee, for the benefit
of the
registered holders and beneficial owners of the Certificates, is
expressly
authorized to assign its rights and obligations under this
Agreement with
respect to any Defaulted Mortgage Loan (as defined in Pooling
and Servicing
Agreement) to the Majority Controlling Class Certificateholder
(as defined in
the Pooling and Servicing Agreement) or its assignee in
connection with its or
such assignee's purchase of such Mortgage Loan pursuant to
Section 3.18(b) of
the Pooling and Servicing Agreement. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller and the
Purchaser, and their respective successors and permitted
assigns.
SECTION 18 Information. The Seller shall, for the purpose of
facilitating the issuance and sale of the Certificates by the
Depositor, provide
the Purchaser with such information about the Seller, the
Mortgage Loans and the
Seller's underwriting and servicing procedures as is (i)
customary in commercial
mortgage loan securitization transactions, (ii) required by a
Rating Agency or a
governmental agency or body or (iii) reasonably requested by the
Purchaser for
use in a public or private disclosure document.
SECTION 19 Cross-Collateralized Mortgage Loans.
Notwithstanding
anything herein to the contrary, it is hereby acknowledged that
certain groups
of Mortgage Loans are, in the case of each such particular group
of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms,
cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is
identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged
Property that
relates or corresponds to any of the Mortgage Loans referred to
in this Section
19 shall be the property identified in the Mortgage Loan
Schedule as
corresponding thereto. The provisions of this Agreement,
including, without
limitation, each of the representations and warranties set forth
in Exhibit C
hereto and each of the capitalized terms used herein but defined
in the Pooling
and Servicing Agreement, shall be interpreted in a manner
consistent with this
Section 19. In addition, if there exists with respect to any
Cross-Collateralized Group only one original or certified copy
of any document
referred to in the definition of "Mortgage File" in the Pooling
and Servicing
Agreement and covering all the Mortgage Loans in such
Cross-Collateralized
Group, the inclusion of the original or certified copy of such
document in the
Mortgage File for any of the Mortgage Loans constituting a part
of such
Cross-Collateralized Group shall be deemed an inclusion of such
original or
certified copy in the Mortgage File for each Mortgage Loan
included within such
Cross-Collateralized Group.
SECTION 20 Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire
agreement and
understanding of the parties with respect to the matters
addressed herein, and
this Agreement supersedes any prior agreements and/or
understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
this
Agreement to be duly executed by their respective officers as of
the day and
year first above written.
CAPMARK FINANCE INC.
By: /s/ Victor Diaso
-----------------
Name: Victor Diaso
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By: /s/ Jeffrey A. Altabef
-----------------------
Name: Jeffrey A. Altabef
Title: Vice President
<PAGE>
Exhibit A - Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series
2007-C5
Combined Collateral
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2007-C5
<TABLE>
<CAPTION>
# Crossed Property Name
------- ------- -------------
<S> <C> <C>
5 60 Wall Street
7 Commerce Corporate Plaza
13 Mystic Marriott
15 Cornerstone Commerce Center
16 Hilton - Ontario
24 Best Western Beach Resort - Monterey
29 Medford Plaza Shopping Center
32 Charlotte Portfolio
32.1 Chateau Village Apartments
32.2 Emerald Bay Apartments
32.3 Highlands Apartments
35 Cowan Industrial Park
36 677 Larch Avenue
37 Residence Inn by Marriott - East Rutherford
46 Albers Mill
47 9990 Empire Street (Hoist Fitness)
48 St. Louis Hilton and Mike Shannon's Restaurant
50 Fremont Village Square
55 Fairfield Inn & Suites - Orlando
63 Regency Evansville Portfolio
63.1 Town Center North
63.2 Fairlawn Shopping Center
63.3 Ross Center
63.4 Westgate Shopping Center
69 Walgreens Portfolio VI
69.1 Walgreens (Paragould)
69.2 Walgreens (Heath)
74 Plaza 85 Business Park
80 Westgate Center
83 UC Self Storage
88 Summer Tree Apartment Homes
90 Rosemont Marketplace
93 Courtyard by Marriott - Gulf Shores
94 Meadows Plaza
96 Cochran - Simi Valley
97 Canyon Ridge MHP
100 Chandler Office Building
104 Fly Away Parking
116 Kawaihae Shopping Center
117 730 Louis Drive
122 Essex Medical Office
125 Linens' N Things
147 353 West Lancaster Avenue
169 Walgreens (Orlando)
<CAPTION>
Zip
# Address City State Code
----- ----------------------------------------------------------
------------------- ----- -----
<S> <C> <C> <C> <C>
5 60 Wall Street New York NY 10005
7 99 Washington Avenue Albany NY 12210
13 625 North Road Groton CT 06340
15 1201 New Road Linwood NJ 08221
16 700 North Haven Avenue Ontario CA 91764
24 2600 San
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