EXHIBIT 10.1
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
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<PAGE>
TABLE OF CONTENTS
Section 1.
Transactions on or Prior to the Closing Date...................
Section 2.
Closing Date Actions...........................................
Section 3.
Conveyance of Mortgage Loans...................................
Section 4.
Depositor's Conditions to Closing..............................
Section 5.
Seller's Conditions to Closing.................................
Section 6.
Representations and Warranties of Seller.......................
Section 7.
Obligations of Seller..........................................
Section 8.
Crossed Mortgage Loans.........................................
Section 9.
Rating Agency Fees; Costs and Expenses Associated with a
Defeasance....................................................
Section 10.
Representations and Warranties of Depositor....................
Section 11. Survival
of Certain Representations, Warranties and Covenants..
Section 12.
Transaction Expenses...........................................
Section 13. Recording
Costs................................................
Section 14.
Notices........................................................
Section 15. Notice of
Exchange Act Reportable Events.......................
Section 16.
Examination of Mortgage Files..................................
Section 17.
Successors.....................................................
Section 18. Governing
Law..................................................
Section 19.
Severability...................................................
Section 20. Further
Assurances.............................................
Section 21.
Counterparts...................................................
Section 22. Treatment
as Security Agreement................................
Section 23.
Recordation of Agreement.......................................
Schedule I Schedule of
Transaction Terms
Schedule II Mortgage Loan Schedule
for Column Trust Mortgage Loans
Schedule III
Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with
Lost Notes
Schedule V Exceptions with
Respect to Seller's Representations and
Warranties
Exhibit A
Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of
Lost Note Affidavit
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of December 1, 2006, is made by and between COLUMN FINANCIAL, INC.,
a Delaware
corporation ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES
CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms
attached hereto
as Schedule I, which is incorporated herein by this reference, or,
if not
defined therein or elsewhere in this Agreement, in the Pooling and
Servicing
Agreement.
II. On the Closing Date, and on the terms set forth herein,
Seller
has agreed to sell to Depositor and Depositor has agreed to
purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan
Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage
Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit
the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created
pursuant to
the Pooling and Servicing Agreement and to cause the issuance of
the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and
for
good and valuable consideration, the receipt and adequacy of which
is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior
to the Closing Date, Seller shall have delivered the Mortgage Files
with respect
to each Mortgage Loan to Wells Fargo Bank, N.A., as trustee (the
"Trustee"),
against receipt by Seller of a trust receipt, pursuant to an
arrangement between
Seller and the Trustee; provided, however, that item (p) in the
definition of
Mortgage File (below) shall be delivered to the Master Servicer for
inclusion in
the Servicer File (defined below) with a copy delivered to the
Trustee for
inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously
with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of
the
Certificates and the sale of (a) the Publicly Offered Certificates
by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b)
the Private
Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate
Purchase Agreement. The closing (the "Closing") shall take place at
the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial
Center, New York, New
York 10281, or such other location as agreed upon between the
parties hereto. On
the Closing Date, the following actions shall take place in
sequential order on
the terms set forth herein:
(i) 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). The Mortgage Loan
Purchase
Price shall be paid by Depositor to Seller by wire transfer in
immediately available funds to an account designated by Seller on
or prior
to the
Closing Date (or, by such other method as shall be mutually
acceptable
to Depositor and Seller). The "Mortgage Loan Purchase Price"
paid by
Depositor shall be equal to the amount that the Depositor and
the
Seller
have mutually agreed upon as the Seller's share of the net
securitization proceeds from the sale of the Publicly Offered
Certificates
and the
Private Certificates as set forth in the Closing Statement
(which
amount
includes, without limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement,
Depositor
shall sell all of its right, title and interest in and to the
Mortgage
Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters
shall
purchase from Depositor, the Publicly Offered Certificates
pursuant
to the
Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser,
and the Initial Purchaser shall purchase from Depositor, the
Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates
for sale
to the public pursuant to the Prospectus and the Prospectus
Supplement
and the Initial Purchaser will privately place certain classes
of the
Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date,
Seller
shall sell, convey, assign and transfer, without recourse except as
provided
herein, to Depositor, free and clear of any liens, claims or other
encumbrances,
all of Seller's right, title and interest in, to and under: (i)
each of the
Mortgage Loans identified on the Mortgage Loan Schedule; and (ii)
all property
of Seller described in Section 22(b) of this Agreement, including,
without
limitation, (A) all scheduled payments of interest and principal
due on or with
respect to the Mortgage Loans after the Cut-off Date and (B) all
other payments
of interest, principal or yield maintenance charges received on or
with respect
to the Mortgage Loans after the Cut-off Date, other than any such
payments of
interest or principal or yield maintenance charges that were due on
or prior to
the Cut-off Date. The parties acknowledge that such assignment,
conveyance and
transfer of the Mortgage Loans shall not be construed to limit any
obligation of
Seller, any servicing rights of KeyCorp Real Estate Capital
Markets, Inc. under
that certain Servicing Rights Purchase Agreement dated as of
December 1, 2006,
between Seller and KeyCorp Real Estate Capital Markets, Inc., or
any related
servicing rights of any Primary Servicer contemplated by the
Pooling and
Servicing Agreement. The Mortgage File for each Mortgage Loan shall
consist of
the following documents:
(a) each original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially
in the form
of Exhibit B hereto and a true and complete copy of the Note),
bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges
showing a complete chain of endorsement or assignment from the
Mortgage Loan
Originator either in blank or to the Seller, and further endorsed
(at the
direction of the Depositor given pursuant to this Agreement) by the
Seller, on
its face or by allonge attached thereto, without recourse, either
in blank or to
the order of the Trustee in the following form: "Pay to the order
of Wells Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse
First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series
2006-C5, without recourse, representation or warranty, express or
implied";
(b) a duplicate original Mortgage or a counterpart thereof or,
if
such Mortgage has been returned by the related recording office,
(A) an
original, (B) a certified copy or (C) a copy thereof from the
applicable
recording office, and originals or counterparts (or originals or
copies of
certified copies from the applicable recording office) of any
intervening
assignments thereof from the Mortgage Loan Originator to the
Seller, in each
case in the form submitted for recording or, if recorded, with
evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form
(except
for any missing recording information and, if applicable,
completion of the name
of the assignee), from the Seller (or the Mortgage Loan
Originator), either in
blank or to "Wells Fargo Bank, N.A., as trustee for the registered
Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage
Pass-Through Certificates, Series 2006-C5";
(d) an original, counterpart or copy of any related Assignment
of
Leases (if such item is a document separate from the Mortgage), and
the
originals, counterparts or copies of any intervening assignments
thereof from
the Mortgage Loan Originator of the Loan to the Seller, in each
case in the form
submitted for recording or, if recorded, with evidence of recording
thereon;
(e) an original assignment of any related Assignment of Leases
(if
such item is a document separate from the Mortgage and to the
extent not already
assigned pursuant to clause (c) above), in recordable form (except
for any
missing recording information and, if applicable, completion of the
name of the
assignee), from the Seller (or the Mortgage Loan Originator),
either in blank or
to "Wells Fargo Bank, N.A., as trustee for the registered Holders
of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through
Certificates, Series 2006-C5";
(f) an original or true and complete copy of any related
Security
Agreement (if such item is a document separate from the Mortgage),
and the
originals or copies of any intervening assignments thereof from the
Mortgage
Loan Originator to the Seller;
(g) an original assignment of any related Security Agreement
(if
such item is a document separate from the Mortgage and to the
extent not already
assigned pursuant to clause (c) above), from the Seller (or the
Mortgage Loan
Originator), either in blank or to "Wells Fargo Bank, N.A., as
trustee for the
registered Holders of Credit Suisse First Boston Mortgage
Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2006-C5,"
which assignment
may be included as part of an omnibus assignment covering other
documents
relating to the Mortgage Loan (provided that such omnibus
assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D)
substitution agreements,
together with any evidence, when appropriate, of recording thereon
or in the
form submitted for recording, in those instances where the terms or
provisions
of the Mortgage, Note or any related security document have been
modified or the
Mortgage Loan has been assumed;
(i) the original lender's title insurance policy or a copy
thereof
(together with all endorsements or riders that were issued with or
subsequent to
the issuance of such policy), or if the policy has not yet been
issued, the
original or a copy of a binding written commitment (which may be a
pro forma or
specimen title insurance policy which has been accepted or approved
in writing
by the related title insurance company or escrow instructions
binding on the
title insurer irrevocably obligating the title insurer to issue
such title
insurance policy) or interim binder that is marked as binding and
countersigned
by the title company, insuring the priority of the Mortgage as a
first lien on
the related Mortgaged Property, relating to such Mortgage Loan;
(j) the original or a counterpart of any guaranty of the
obligations
of the Borrower under the Mortgage Loan;
(k) certified or other copies of all UCC Financing Statements
and
continuation statements which show the filing or recording thereof
or copies
thereof in the form submitted for filing or recording sufficient to
perfect (and
maintain the perfection of) the security interest held by the
Mortgage Loan
Originator (and each assignee of record prior to the Trustee) in
and to the
personalty of the Borrower at the Mortgaged Property that is
described in the
related Mortgage or a separate security agreement, and original UCC
Financing
Statement assignments in a form suitable for filing or recording,
sufficient to
assign such UCC Financing Statements to the Trustee;
(l) the original or copy of the power of attorney (with evidence
of
recording thereon) granted by the Borrower if the Mortgage, Note or
other
document or instrument referred to above was not signed by the
Borrower;
(m) with respect to any debt of a Borrower or mezzanine
borrower
permitted under the related Mortgage Loan, an original or copy of
a
subordination agreement, standstill agreement or other
intercreditor, co-lender
or similar agreement relating to such other debt, if any
(including, as
applicable, any Intercreditor Agreements, mezzanine loan documents
or preferred
equity documents), together with, if such Mortgage Loan is an A
Loan, a copy of
the related Note for each related B Loan;
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral
control agreement
or lock-box control agreement, as applicable, and a copy of the UCC
Financing
Statements, if any, submitted for filing with respect to the
Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and
all funds
contained therein (together with UCC Financing Statement
assignments in a form
suitable for filing or recording, sufficient to transfer such UCC
Financing
Statements to the Trustee on behalf of the Certificateholders);
(o) an original or copy of any related Loan Agreement (if
separate
from the related Mortgage);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan, provided that in connection with deliveries of the
Mortgage File
to the Trust, such originals shall be delivered to the Master
Servicer and
copies thereof shall be delivered to the Trustee;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies
thereof;
(r) the original or a copy of any ground lease, ground lease
estoppels, and any amendments thereto;
(s) copies of franchise agreements and franchisor comfort
letters,
if any, for hospitality properties;
(t) the original or a copy of any property management
agreement;
(u) a checklist of the related Mortgage Loan Documents included
in
the Mortgage File for the subject Mortgage Loan; and
(v) if applicable (and not for purposes of the Seller's
delivery
obligations), the original or a counterpart of any post-closing
agreement
relating to any modification, waiver or amendment of any term of
any Mortgage
Loan (including fees charged the Borrower) required to be added to
the Mortgage
File pursuant to Section 3.20(j) of the Pooling and Servicing
Agreement.
With respect to the 280 Park Avenue Loan, the following documents
on
a collective basis:
(a) the original executed Note for such Mortgage Loan, endorsed
(either on the face thereof or pursuant to a separate allonge) "Pay
to the order
of Wells Fargo Bank Minnesota, N.A., as trustee for the registered
holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage
Pass-Through Certificates, Series 2003-C5, without recourse", or in
blank,
without recourse and further showing a complete, unbroken chain of
assignment
and endorsement from the originator (if such originator is other
than the
Seller); or, alternatively, if the original executed Note has been
lost, a lost
note affidavit and indemnity with a copy of such Note;
(b) a copy of the executed 280 Park Avenue Intercreditor
Agreement;
(c) a copy of the 280 Park Avenue Servicing Agreement; and
(d) a copy of the documents that make up the "Servicing File"
under
the 280 Park Avenue Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan (other than with respect to the 280 Park Avenue
Loan), the
Seller cannot deliver, or cause to be delivered, an original,
counterpart or
certified copy, as applicable, of any of the documents and/or
instruments
required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than
assignments of UCC Financing Statements to be recorded or filed in
accordance
with the transfer contemplated by this Agreement), (l) and (n)
(other than
assignments of UCC Financing Statements to be recorded or filed in
accordance
with the transfer contemplated by this Agreement) above with
evidence of
recording or filing thereon on the Closing Date, 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, then the
Seller: (i)
shall deliver, or cause to be delivered, to the Trustee a duplicate
original or
true copy of such document or instrument certified by the
applicable public
recording or filing office, the applicable title insurance company
or the Seller
to be a true and complete duplicate original or copy of the
original thereof
submitted for recording or filing; and (ii) shall deliver, or cause
to be
delivered, to the Trustee either the original of such non-delivered
document or
instrument, or a photocopy thereof (certified by the appropriate
public
recording or filing office to be a true and complete copy of the
original
thereof submitted for recording or filing), with evidence of
recording or filing
thereon (with a copy to the Master Servicer), within 365 days of
the Closing
Date, which period may be extended up to two times, in each case
for an
additional period of 90 days (provided that the Seller, as
certified in writing
to the Trustee prior to each such 90-day extension, is in good
faith attempting
to obtain from the appropriate county recorder's office such
original or
photocopy). Compliance with this paragraph will satisfy the
Seller's delivery
requirements under this Section 3 with respect to the subject
document(s) and
instrument(s).
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan (other than with respect to the 280 Park Avenue
Loan), the
Seller cannot deliver, or cause to be delivered, an original,
counterpart or
certified copy, as applicable, of any of the documents and/or
instruments
required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than
assignments of UCC Financing Statements to be recorded or filed in
accordance
with the transfer contemplated by this Agreement), (l) and (n)
(other than
assignments of UCC Financing Statements to be recorded or filed in
accordance
with the transfer contemplated by this Agreement) above with
evidence of
recording or filing thereon, for any other reason, including
without limitation,
that such non-delivered document or instrument has been lost, the
delivery
requirements of this Agreement shall be deemed to have been
satisfied and such
non-delivered document or instrument shall be deemed to have been
included in
the related Mortgage File if a photocopy of such non-delivered
document or
instrument (with evidence of recording or filing thereon and
certified by the
appropriate recording or filing office to be a true and complete
copy of the
original thereof as filed or recorded) is delivered to the Trustee
(with a copy
to the Master Servicer) on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller
cannot
deliver any UCC Financing Statement assignment with the filing or
recording
information of the related UCC Financing Statement with respect to
any Mortgage
Loan, solely because such UCC Financing Statement has not been
returned by the
public filing or recording office where such UCC Financing
Statement has been
delivered for filing or recording, the Seller shall so notify the
Trustee and
shall not be in breach of its obligations with respect to such
delivery,
provided that the Seller promptly forwards such UCC Financing
Statement to the
Trustee (with a copy to the Master Servicer) upon its return,
together with the
related original UCC Financing Statement assignment in a form
appropriate for
filing or recording.
The Seller may, at its sole cost and expense, but is not
obligated
to, engage a third party contractor to prepare or complete in
proper form for
filing or recording any and all assignments of Mortgage,
assignments of
Assignments of Leases and assignments of UCC Financing Statements
to the Trustee
to be delivered pursuant to clauses (c), (e), (k) and (n) above
(collectively,
the "Assignments"), to submit the Assignments for filing and
recording, as the
case may be, in the applicable public filing and recording offices
and to
deliver those Assignments to the Trustee (with a copy to the Master
Servicer) or
its designee as those Assignments (or certified copies thereof) are
received
from the applicable filing and recording offices with evidence of
such filing or
recording indicated thereon. In the event the Seller engages a
third party
contractor as contemplated in the immediately preceding sentence,
the rights,
duties and obligations of the Seller pursuant to this Agreement
remain binding
on the Seller; and, if the Seller does not engage a third party as
contemplated
by the immediately preceding sentence, then the Seller will still
be liable for
recording and filing fees and expenses of the Assignments as and to
the extent
contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, the
Seller
shall deliver the Servicer Files with respect to each of the
Mortgage Loans to
the Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of
the Master Servicer, with a copy to the Master Servicer) under the
Pooling and
Servicing Agreement on behalf of the Trustee in trust for the
benefit of the
Certificateholders. Each such Servicer File shall contain all
documents and
records in the Seller's possession relating to such applicable
Mortgage Loans
(including reserve and escrow agreements, cash collateral control
agreements,
lock-box control agreements, rent rolls, leases, environmental and
engineering
reports, third-party underwriting reports, appraisals, surveys,
legal opinions,
estoppels, financial statements, operating statements and any other
information
provided by the respective Borrower from time to time, but
excluding any draft
documents, attorney/client communications, which are privileged or
constitute
legal or other due diligence analyses, and documents prepared by
the Seller or
any of its Affiliates solely for internal communication, credit
underwriting or
due diligence analyses (other than the underwriting information
contained in the
related underwriting memorandum or asset summary report prepared by
the Seller
in connection with the preparation of Exhibit A-1 to the Prospectus
Supplement))
that are not required to be a part of a Mortgage File in accordance
with the
definition thereof, together with copies of all instruments and
documents which
are required to be a part of the related Mortgage File in
accordance with the
definition thereof.
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 (within 30 days after the Closing Date) shall
cause to be
prepared, executed and delivered to the issuer of each such letter
of credit
such notices, assignments and acknowledgements as are required
under such letter
of credit to assign, without recourse, to, and vest in, the Trustee
(in care of
the Master Servicer) (whether by actual assignment or by amendment
of the letter
of credit) the Seller's rights as the beneficiary thereof and
drawing party
thereunder. The designated beneficiary under each letter of credit
referred to
in the preceding sentence shall be the Trustee (in care of the
Master Servicer).
For purposes of this Section 3, and notwithstanding any
contrary
provision hereof or of the definition of "Mortgage File," if there
exists with
respect to any group of Crossed Mortgage Loans only one original or
certified
copy of any document or instrument described in the definition of
"Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such
group of
Crossed Mortgage Loans, the inclusion of the original or certified
copy of such
document or instrument in the Mortgage File for any of such Crossed
Mortgage
Loans and the inclusion of a copy of such original or certified
copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such
group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or
certified
copy, as the case may be, in the Mortgage File for each such
Crossed Mortgage
Loan.
The Seller shall, promptly after the Closing Date, but in all
events
within three (3) Business Days after the Closing Date, cause all
funds on
deposit in escrow accounts maintained with respect to the Mortgage
Loans in the
name of the Seller or any other name, to be transferred to or at
the direction
of the Master Servicer (or, if applicable, a Sub-Servicer at the
direction of
the Master Servicer) for deposit into Servicing Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off
Date, all
other payments of principal due and collected after the Cut-off
Date, and all
payments of interest on the Mortgage Loans due after the Cut-off
Date, minus
that portion of any such payment which is allocable to the period
on or prior to
the Cut-off Date. All scheduled payments of principal due on or
before the
Cut-off Date and collected after the Cut-off Date, together with
the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage
and the
contents of the related Mortgage File shall be vested in Depositor
and the
ownership of all records and documents with respect to the related
Mortgage Loan
prepared by or which come into the possession of Seller as seller
of the
Mortgage Loans hereunder, exclusive in each case of records and
documents that
are not required to be delivered hereunder by Seller, shall
immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other
amounts
received by Seller and not otherwise belonging to Seller pursuant
to this
Agreement shall be sent by Seller within three (3) Business Days
after Seller's
receipt thereof to the Master Servicer via wire transfer for
deposit by the
Master Servicer into the Collection Account.
Upon
sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller
shall, under
generally accepted accounting principles ("GAAP"), report its
transfer of the
Mortgage Loans to the Depositor, as provided herein, as a sale of
the Mortgage
Loans to the Depositor in exchange for the consideration specified
in Section 2
hereof. In connection with the foregoing, upon sale of Certificates
representing
at least 10% of the fair value of all the Certificates to
unaffiliated third
parties, Seller shall cause all of its financial and accounting
records to
reflect such transfer as a sale (as opposed to a secured loan).
With respect to
its treatment of the transfer of the Mortgage Loans to the
Depositor under GAAP,
Seller shall at all times following the Closing Date cause all of
its records
and financial statements and any relevant consolidated financial
statements of
any direct or indirect parent to clearly reflect that the Mortgage
Loans have
been transferred to the Depositor and are no longer available to
satisfy claims
of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's
ownership (or the ownership by any of the Depositor's assignees) 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 Seller is expressly permitted to complete subsequent
to the Closing
Date, Seller shall, on or before the Closing Date, take all actions
required
under applicable law to effectuate the transfer of the Mortgage
Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations
of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan
Purchase
Price at the Closing Date under the terms of this Agreement are
subject to the
satisfaction of each of the following conditions at or before the
Closing:
(a) Each of the obligations of the Seller required to be
performed
by it on or prior to the Closing Date pursuant to the terms of this
Agreement
shall have been duly performed and complied with in all material
respects; all
of the representations and warranties of Seller under this
Agreement (subject to
the exceptions set forth in the Exception Report) shall be true and
correct in
all material respects as of the Closing Date; no event shall have
occurred with
respect to the Seller or any of the Mortgage Loans and related
Mortgage Files
which, with notice or the passage of time, would constitute a
material default
under this Agreement; and Depositor shall have received
certificates to the
foregoing effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys or other designee, shall have received in
escrow, all of
the following closing documents, in such forms as are agreed upon
and reasonably
acceptable to the Depositor and the Seller, duly executed by all
signatories
other than Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage Files, subject to the proviso to the first
sentence
of Section
1 of this Agreement, which shall have been delivered to and
held by
the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its
representations
and
warranties set forth in Section 6 (subject to the exceptions set
forth
in the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing
Date,
covering various corporate matters and such other matters as
shall
be
reasonably required by the Depositor;
(v) such other certificates of Seller's officers or others and
such
other
documents to evidence fulfillment of the conditions set forth
in
this
Agreement as Depositor or its counsel may reasonably request;
and
(vi) all other information, documents, certificates, or letters
with
respect to
the Mortgage Loans or Seller and its Affiliates as are
reasonably
requested by the Depositor in order for the Depositor to
perform
any of it obligations or satisfy any of the conditions on its
part
to be
performed or satisfied pursuant to any sale of Mortgage Loans by
the
Depositor
as contemplated herein.
(c) The Seller shall have performed or complied with all other
terms
and conditions of this Agreement which it is required to perform or
comply with
at or before the Closing and shall have the ability to perform or
comply with
all duties, obligations, provisions and terms which it is required
to perform or
comply with after the Closing.
(d) If requested, the Seller shall have delivered to the Trustee,
on
or before the Closing Date, five limited powers of attorney in
favor of the
Trustee and the Special Servicer empowering the Trustee and, in the
event of the
failure or incapacity of the Trustee, the Special Servicer, to
record, at the
expense of the Seller, any Mortgage Loan Documents required to be
recorded and
any intervening assignments with evidence of recording thereon that
are required
to be included in the Mortgage Files. If requested by the Trustee
or the Special
Servicer after the Closing Date, the Seller shall deliver to the
Trustee or the
Special Servicer, as applicable, the powers of attorney described
in the prior
sentence in form and substance reasonably acceptable to the
requesting party.
(e) The Seller shall have paid or caused to be paid upfront all
the
annual fees of each Rating Agency allocable to the Mortgage
Loans.
Section 5. Seller's Conditions to Closing. The obligations of
Seller
under this Agreement shall be subject to the satisfaction, on the
Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed
by
it on or prior to the Closing Date pursuant to the terms of this
Agreement
(including, without limitation, payment of the Mortgage Loan
Purchase Price)
shall have been duly performed and complied with in all material
respects; and
all of the representations and warranties of Depositor under this
Agreement
shall be true and correct in all material respects as of the
Closing Date; and
no event shall have occurred with respect to Depositor which, with
notice or the
passage of time, would constitute a material default under this
Agreement, and
Seller shall have received certificates to that effect signed by
authorized
officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably
acceptable to Seller
and Depositor, duly executed by all signatories other than Seller,
as required
pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the
charter,
by-laws and certificate of good standing dated as of a recent
date
of Depositor; and
(B) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required
to
evidence fulfillment of the conditions set forth in this
Agreement
as Seller or its counsel may reasonably request.
(c) The Depositor shall have performed or complied with all
other
terms and conditions of this Agreement which it is required to
perform or comply
with at or before the Closing and shall have the ability to perform
or comply
with all duties, obligations, provisions and terms which it is
required to
perform or comply with after Closing.
Section 6. Representations and Warranties of Seller. (a) Seller
represents and warrants to Depositor as of the date hereof, as
follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware.
Seller has
conducted and is conducting its business so as to comply in all
material
respects with all applicable statutes and regulations of
regulatory
bodies or agencies having jurisdiction over it, except where
the
failure so to comply would not have a materially adverse effect on
the
performance by Seller of this Agreement, and there is no
charge,
investigation, action, suit or proceeding before or by any
court,
regulatory
authority or governmental agency or body pending or, to the
knowledge
of Seller, threatened, which is reasonably likely to materially
and adversely
affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold,
transfer
and convey the Mortgage Loans owned by it and to execute and
deliver
this Agreement (and all agreements and documents executed and
delivered
by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all
agreements
and
documents executed and delivered by Seller in connection
herewith).
Seller has
duly authorized the execution, delivery and performance of this
Agreement
(and all agreements and documents executed and delivered by
Seller in
connection herewith), and has duly executed and delivered this
Agreement
(and all agreements and documents executed and delivered by
Seller in
connection herewith). This Agreement (and each agreement and
document
executed and delivered by Seller in connection herewith),
assuming
due authorization, execution and delivery thereof by each other
party
thereto, constitutes the legal, valid and binding obligation of
Seller
enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, fraudulent transfer,
insolvency,
reorganization, receivership, moratorium or other laws relating to
or
affecting
the rights of creditors generally, by general principles of
equity
(regardless of whether such enforcement is considered in a
proceeding
in equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement,
nor the fulfillment of or compliance with the terms and
conditions
of this Agreement by Seller, will (A) conflict with or result
in a
breach of any of the terms, conditions or provisions of
Seller's
organizational documents; (B) conflict with, result in a breach of,
or
constitute
a default or result in an acceleration under, any agreement or
instrument
to which Seller is now a party or by which it (or any of its
properties) is bound if compliance therewith is necessary (1) to
ensure
the
enforceability of this Agreement or (2) for Seller to perform
its
duties and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith); (C) conflict
with or
result in a breach of any legal restriction if compliance
therewith
is necessary (1) to ensure the enforceability of this Agreement
or (2) for
Seller to perform its duties and obligations under this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith); (D) result in the violation of any law,
rule,
regulation, order, judgment or decree to which Seller or its
property is
subject if
compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith); or (E) result
in
the
creation or imposition of any lien, charge or encumbrance that
would
have a
material adverse effect upon Seller's ability to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith), or materially
impair the
ability of the Depositor to realize on the Mortgage Loans owned
by
Seller.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will
not cause
Seller to become insolvent and (2) is not intended by Seller to
hinder,
delay or defraud any of its present or future creditors. After
giving
effect to its transfer of the Mortgage Loans, as provided
herein,
the value
of Seller's assets, either taken at their present fair saleable
value or
at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and
obligations
of Seller,
and Seller will not be left with unreasonably small assets or
capital
with which to engage in and conduct its business. Seller does
not
intend to,
and does not believe that it will, incur debts or obligations
beyond its
ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy
of the
Seller are
pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration
or filing
with, or notice to, any court or governmental agency or body
having
jurisdiction or regulatory authority over Seller is required
for
(A)
Seller's execution, delivery and performance of this Agreement (or
any
agreement
or document executed and delivered by Seller in connection
herewith),
(B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the
consummation by Seller of the transactions contemplated by this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith) or, to the extent so required, such
consent,
approval,
authorization, order, registration, filing or notice has been
obtained,
made or given (as applicable), except for the filing or
recording
of assignments and other Mortgage Loan Documents contemplated
by
the terms
of this Agreement and except that Seller may not be duly
qualified
to transact business as a foreign corporation or licensed in
one
or more
states if such qualification or licensing is not necessary to
ensure the
enforceability of this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is
receiving
new value. The consideration received by Seller upon the sale
of
the
Mortgage Loans owned by it constitutes at least fair consideration
and
reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause
to
believe, that it cannot perform each and every covenant of
Seller
contained
in this Agreement (or any agreement or document executed and
delivered
by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to
Seller's
knowledge, threatened in writing against Seller which are
reasonably
likely to draw into question the validity of this Agreement (or
any
agreement or document executed and delivered by Seller in
connection
herewith)
or which, either in any one instance or in the aggregate, are
reasonably
likely to materially impair the ability of Seller to perform
its duties
and obligations under this Agreement (or any agreement or
document
executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this
Agreement
(and each agreement or document executed and delivered by
Seller
in
connection herewith) is in the ordinary course of business of
Seller
and
Seller's transfer, assignment and conveyance of the Mortgage
Loans
pursuant
to this Agreement are not subject to the bulk transfer or
similar
statutory
provisions in effect in any applicable jurisdiction. The
Mortgage
Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled,
by
reason of
any act or omission of Seller, to any commission or
compensation
in
connection with the sale of the Mortgage Loans to the Depositor
hereunder
except for (A) the reimbursement of expenses as described
herein
or
otherwise in connection with the transactions described in Section
2
hereof and
(B) the commissions or compensation owed to the Underwriters or
the
Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument
to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially
and
adversely
affect the ability of Seller to perform its obligations under
this
Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto,
subject to the exceptions set forth in the Exception Report,
are
true and
correct in all material respects as of the date hereof (or, in
each case,
as of such other date specifically set forth in the subject
representation and warranty) with respect to the Mortgage Loans
identified
on
Schedule II.
(xiii) The information set forth in any Disclosure Information
(as
defined in
the Column 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 Column Indemnification Agreement); but
only to
the extent that (i) such information regards the Mortgage Loans
and is
contained in the Loan Detail (as defined in the Column
Indemnification Agreement) or, to the extent consistent therewith,
the
Diskette
(as defined in the Column 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," "--Originators," "--The
Underlying
Mortgage
Loans," "--Source of the Underlying Mortgage Loans," "Risk
Factors,"
"Description of the Sponsors and Mortgage Loan Sellers"
"Description of the Underlying Mortgage Loans" and "--Significant
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 Loan Detail.
(b) The Seller hereby agrees that it shall be deemed to make, as
of
the date of substitution, to and for the benefit of the Trustee as
the holder of
the Mortgage Loan to be replaced, with respect to any replacement
mortgage loan
(a "Replacement Mortgage Loan") that is substituted for a Mortgage
Loan affected
by a Material Document Defect or a Material Breach, pursuant to
Section 7 of
this Agreement, each of the representations and warranties set
forth in Exhibit
A hereto (subject to exceptions disclosed at such time) (references
therein to
"Closing Date" being deemed to be references to the "date of
substitution" and
references therein 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"). 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.
Section 7. Obligations of Seller. Each of the representations
and
warranties contained in or required to be made by Seller pursuant
to Section 6
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 6
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 (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, 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 A hereto and
made by the
Seller with respect to any Mortgage Loan listed on Schedule II
hereto, as of the
date hereof in Section 6(a)(xii) or as of the Closing Date pursuant
to Section
4(b)(iii) (in either case, subject to the exceptions to such
representations and
warranties set forth in the Exception Report), or with respect to
any
Replacement Mortgage Loan, as of the date of substitution pursuant
to Section
6(b) (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 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" or a "Material
Document Defect,"
respectively), then the Seller shall, upon request of the
Depositor, the
Trustee, the Master Servicer or the Special Servicer, not later
than 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 Document 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 Document Defect is capable of being cured but not within
the Initial
Resolution Period, (ii) such Material Breach or Material Document
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
Document 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 Document Defect or
Material Breach.
If there exists a Breach of any representation or warranty that the
related
Mortgage Loan Documents or any particular Mortgage Loan Document
requires the
related Borrower to bear the costs and expenses associated with any
particular
action or matter under such Mortgage Loan Document(s), then the
Seller shall
cure such Breach within the Initial Resolution Period by
reimbursing the Trust
Fund (by wire transfer of immediately available funds to the
Collection Account)
the reasonable amount of any such costs and expenses incurred by
the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund that
are the basis
of such Breach and have not been reimbursed by the related
Borrower; provided,
however, that in the event that any such costs and expenses exceed
$10,000, the
Seller shall have the option to either repurchase the related
Mortgage Loan at
the applicable Purchase Price, replace such Mortgage Loan and pay
any applicable
Substitution Shortfall Amount or pay such costs and expenses.
Except as provided
in the proviso to the immediately preceding sentence, Seller shall
remit the
amount of such costs and expenses and upon its making such
remittance, Seller
shall be deemed to have cured such Breach in all respects. Provided
such payment
is made, the second preceding sentence describes the sole remedy
available to
the Certificateholders and the Trustee on their behalf regarding
any such
Breach, and Seller shall not be obligated to repurchase, substitute
or otherwise
cure such Breach under any circumstances. With respect to any
repurchase of a
Mortgage Loan hereunder or 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 Due Date in the
month of
substitution, and scheduled payments of principal and interest due
with respect
to each Mortgage Loan being repurchased or replaced after the
related Cut-off
Date and received by the Master Servicer or the Special Servicer on
behalf of
the Trust on or prior to the related date of repurchase or
substitution shall be
part of the Trust Fund; and (C) scheduled payments of principal and
interest due
with respect to each such Qualified Substitute Mortgage Loan on or
prior to the
Due Date in the month of substitution, and scheduled payments of
principal and
interest due with respect to each Mortgage Loan being repurchased
or replaced
and received by the Master Servicer or the Special Servicer on
behalf of the
Trust after the related date of repurchase or substitution shall
not be part of
the Trust Fund, and the Seller (or, if applicable, any person
effecting the
related repurchase or substitution in the place of 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 clause (i) of the
definition of Mortgage
File in Section 3; (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 (unless
such original
has been delivered to the Master Servicer and copy thereof is part
of the
Mortgage File), 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.
Notwithstanding anything herein to the contrary, the failure to
include a
document checklist in a Mortgage File shall in no event constitute
a Material
Document 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)
Seller's receipt of
notice to Seller of the discovery of such Defect or Breach by any
party to the
Pooling and Servicing Agreement and (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 Document Defect in all
material respects
within the applicable Initial Resolution Period (as extended
pursuant to this
Section 7), or if such Material Breach or Material Document Defect
is not
capable of being so corrected or cured within such period, then the
Seller shall
repurchase 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
Document 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 Document Defect or
Material
Breach exists or to repurchase or substitute for all of the Crossed
Mortgage
Loans in the related Mortgage Group. 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.
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 Document 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 affected Mortgaged Property may, pursuant to the partial
release
provisions of the related Mortgage Loan Documents, be released and
the Mortgaged
Property remaining after such release 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) the
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
Document 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 (or by the
Master Servicer or
the Special Servicer on behalf of the Trust), 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 Schedule II 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. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the Seller
repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner
prescribed above
while the Trustee continues to hold any related Crossed Mortgage
Loans, the
Seller and the Depositor (on behalf of its successors and assigns)
agree to
modify upon such repurchase or substitution, the related Mortgage
Loan Documents
in a manner such that such affected Crossed Mortgage Loan
repurchased or
substituted for by the Seller, on the one hand, and any related
Crossed Mortgage
Loans still held by the Trustee, on the other, would no longer
be
cross-defaulted or cross-collateralized with one another; provided,
that the
Seller shall have furnished to the Trustee, at the Seller's
expense, an opinion
of counsel that such modification shall not cause an Adverse REMIC
Event;
provided, further, that if such opinion cannot be furnished, the
Seller and the
Depositor hereby agree that such repurchase or substitution of only
the affected
Crossed Mortgage Loans, notwithstanding anything to the contrary
herein, shall
not be permitted (in which case, the Seller will be obligated to
purchase or
substitute for all Crossed Mortgage Loans in the related Mortgage
Group (defined
above)). Any reserve or other cash collateral or letters of credit
securing the
affected Crossed Mortgage Loans shall be allocated between such
Mortgage Loans
in accordance with the Mortgage Loan Documents. All other terms of
the Mortgage
Loans shall remain in full force and effect, without any
modification thereof
(unless otherwise modified in accordance with the Pooling and
Servicing
Agreement).
Section 9. Rating Agency Fees; Costs and Expenses Associated with
a
Defeasance. The Seller shall pay all Rating Agency fees associated
with an
assumption of a Mortgage Loan to the extent such fees have not been
paid by the
related Borrower and such Borrower is not required to pay them
under the terms
of the related Mortgage Loan Documents in effect on or before the
Closing Date,
the payment of which fees shall constitute the sole remedy of any
breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto
unless the
Seller elects to repurchase or substitute for such Mortgage Loan in
accordance
with the second paragraph of Section 7. The Seller shall pay all
reasonable
costs and expenses associated with a defeasance of a Mortgage Loan
to the extent
such costs and expenses have not been paid by the related Borrower
and such
Borrower is not required to pay them under the terms of the related
Mortgage
Loan Documents in effect on or before the Closing Date, the payment
of which
fees shall constitute the sole remedy of any breach by a Seller
of
representation (liv)(F) set forth on Exhibit A hereto unless the
Seller elects
to repurchase or substitute for such Mortgage Loan in accordance
with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor.
Depositor
hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full
corporate power and authority to own its assets and conduct its
business as it
is conducted, and is duly qualified as a foreign corporation in
good standing in
all jurisdictions in which the ownership or lease of its property
or the conduct
of its business requires such qualification (except where the
failure to qualify
would not have a materially adverse effect on the consummation of
any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement
and
the performance of Depositor's obligations hereunder are within the
corporate
power of Depositor and have been duly authorized by Depositor and
neither the
execution and delivery by Depositor of this Agreement nor the
compliance by
Depositor with the provisions hereof, nor the consummation by
Depositor of the
transactions contemplated by this Agreement, will (i) conflict with
or result in
a breach of, or constitute a default under, the certificate of
incorporation or
by-laws of Depositor or, after giving effect to the consents or
taking of the
actions contemplated by clause (ii) of this paragraph (b), any of
the provisions
of any law, governmental rule, regulation, judgment, decree or
order binding on
Depositor or its properties, or any of the provisions of any
material indenture
or mortgage or any other material contract or other instrument to
which
Depositor is a party or by which it is bound or result in the
creation or
imposition of any lien, charge or encumbrance upon any of its
properties
pursuant to the terms of any such indenture, mortgage, contract or
other
instrument or (ii) require the consent of, notice to or any filing
with any
person, entity or governmental body, which has not been obtained or
made by
Depositor, except where, in any of the instances contemplated by
clause (i)
above or this clause (ii), the failure to do so will not have a
material and
adverse effect on the consummation of any transactions contemplated
by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor
and this Agreement constitutes a legal, valid and binding
instrument,
enforceable against Depositor in accordance with its terms,
subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency,
moratorium and other laws affecting the rights of creditors
generally and to
general principles of equity and the discretion of the court
(regardless of
whether enforcement of such remedies is considered in a proceeding
in equity or
at law) and, as to rights of indemnification hereunder, subject to
limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or
proceeding by or before any court, regulatory authority or
governmental agency
or body pending or, to the knowledge of Depositor, threatened
against Depositor
the outcome of which could be reasonably expected to materially and
adversely
affect the consummation of any transactions contemplated by this
Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth
in or made
pursuant to this Agreement, and the respective obligations of the
parties hereto
under Sections 7 and 9 of this Agreement, will remain in full force
and effect,
regardless of any investigation or statement as to the result
thereof made by or
on behalf of any party and will survive payment for the various
transfers
referred to herein and delivery of the Certificates or termination
of this
Agreement.
Section 12. Transaction Expenses. Whether or not this Agreement
is
terminated, both the Depositor and the Seller agree to pay the
transaction
expenses incurred in connection with the transactions herein
contemplated as set
forth in the Closing Statement.
Section 13. Recording Costs. Seller agrees to reimburse the
Trustee
or its designee all recording and filing fees and expenses incurred
by the
Trustee or its designee in connection with the recording or filing
of the
Mortgage Loan Documents listed in Section 3 of this Agreement,
including
Assignments. In the event Seller elects to engage a third party
contractor to
prepare, complete, file and record Assignments with respect to
Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract
directly with
such contractor and shall be responsible for such contractor's
compensation and
reimbursement of recording and filing fees and other reimbursable
expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and,
shall be
deemed to have been duly given if personally delivered to or
mailed, by
registered mail, postage prepaid, by overnight mail or courier
service, or
transmitted by facsimile and confirmed by similar mailed writing,
if to the
Depositor, addressed to the Depositor at 11 Madison Avenue, 5th
Floor, New York,
New York 10010, Attention: Edmund Taylor, Telecopy No.: (212)
743-4756 (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 Depositor to the Seller in writing, or, if to the Seller,
addressed to
the Seller at 3414 Peachtree Road, N.E., Suite 1140, Atlanta,
Georgia 30326,
Attention: Robert Barnes, Telecopy No.: (404) 239-0419, or such
other address or
telecopy number as may be designated by the Seller to the Depositor
in writing.
Section 15. Notice of Exchange Act Reportable Events. The
Seller
hereby agrees to deliver to the Depositor and the Trustee any
disclosure
information relating to any event reasonably determined in good
faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form
10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in
such form),
including, without limitation, the disclosure required under Items
1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best
efforts to deliver proposed disclosure language relating to any
event described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form
8-K to the
Trustee and the Depositor within one (1) business day and in any
event no later
than two (2) Business Days of the Seller becoming aware of such
event and shall
provide disclosure relating to any other event reasonably
determined by the
Depositor as required to be disclosed on Form 8-K, Form 10-D or
Form 10-K within
two (2) Business Days following the Depositor's request for such
disclosure
language. The obligation of the Seller to provide the above
referenced
disclosure materials will terminate upon notice from the Depositor
or the
Trustee that the Trustee has filed a Form 15 with respect to the
Trust Fund as
to that fiscal year in accordance with Section 11.10(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 Securities Exchange Act of 1934, as
amended.
Section 16. Examination of Mortgage Files. Upon reasonable
notice,
Seller, prior to the Closing Date, will make the Mortgage Files
available to
Depositor or its agent for examination during normal business hours
at Seller's
offices or such other location as shall otherwise be agreed upon by
Depositor
and Seller. The fact that Depositor or its agent has conducted or
has failed to
conduct any partial or complete examination of the Mortgage Files
shall not
affect the rights of Depositor or the Trustee (for the benefit of
the
Certificateholders) to demand cure, repurchase, or other relief as
provided
herein.
Section 17. Successors. This Agreement shall inure to the benefit
of
and shall be binding upon Seller and Depositor and their respective
successors
and permitted assigns, and nothing expressed in this Agreement is
intended or
shall be construed to give any other person any legal or equitable
right, remedy
or claim under or in respect of this Agreement, or any provisions
herein
contained, this Agreement and all conditions and provisions hereof
being
intended to be and being for the sole and exclusive benefit of such
designated
persons and for the benefit of no other person; it being understood
that the
rights of Depositor pursuant to this Agreement, subject to all
limitations
herein contained, including those set forth in Section 7 of this
Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders,
as may be
required to effect the purposes of the Pooling and Servicing
Agreement and, upon
such assignment, the Trustee shall succeed to such rights of
Depositor
hereunder, provided that the Trustee shall have no right to further
assign such
rights to any other Person. No owner of a Certificate issued
pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or
permitted assign
because of such ownership.
Section 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE
WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 19. Severability. If any provision of this Agreement
shall
be prohibited or invalid under applicable law, this Agreement shall
be
ineffective only to such extent, without invalidating the remainder
of this
Agreement.
Section 20. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the
other party
may, from time to time, reasonably request in order to effectuate
the purpose
and to carry out the terms of this Agreement.
Section 21. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different
counterparts), each
of which when so executed and delivered will be an original, and
all of which
together will be deemed to constitute but one and the same
instrument.
Section 22. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage
Loans by Seller
to Depositor as provided in this Agreement be, and be construed as,
a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the
intention of
the parties that such conveyance be deemed a pledge of the Mortgage
Loans by
Seller to Depositor 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:
(a) 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;
(b) the conveyance provided for in this Agreement shall hereby
grant
from Seller to Depositor a security interest in and to all of
Seller's right,
title, and interest, whether now owned or hereafter acquired, in
and to:
(i) 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 or that constitute Replacement
Mortgage
Loans, and all distributions with respect thereto payable after
the
Cut-off Date;
(ii) 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 (i) 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
(iii) all cash and non-cash proceeds of the collateral described
in
clauses
(i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor 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
(d) 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), Depositor or its assignee for the
purpose of
perfecting such security interest under applicable law.
The Seller at the direction of the Depositor or its assignee,
shall,
to the extent consistent with this Agreement, take such actions
as
