EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of June 15, 2005 between CITIGROUP GLOBAL MARKETS REALTY CORP. (the
"Seller")
and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage
Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans,
along with
certain other mortgage loans (the "Other Mortgage Loans"), into a
trust fund
(the "Trust Fund"), the beneficial ownership of which will be
evidenced by
multiple classes (each, a "Class") of mortgage pass-through
certificates (the
"Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The
Trust Fund
will be created and the Certificates will be issued pursuant to a
Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of June 1,
2005, among the Purchaser, as depositor, Wachovia Bank, National
Association, as
master servicer (the "Master Servicer"), Allied Capital
Corporation, as special
servicer (the "Special Servicer"), LaSalle Bank National
Association, as trustee
(the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent.
Capitalized terms used
herein (including the schedules attached hereto) but not defined
herein (or in
such schedules) have the respective meanings set forth in the
Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have
an aggregate principal balance of $1,104,182,164.52 (the "CGMRC
Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the
close of
business on the Cut-off Date, after giving effect to any payments
due on or
before such date, whether or not such payments are received. The
CGMRC Mortgage
Loan Balance, together with the aggregate principal balance of the
Other
Mortgage Loans as of the Cut-off Date (after giving effect to any
payments due
on or before such date whether or not such payments are received),
is expected
to equal an aggregate principal balance (the "Cut-off Date Pool
Balance") of
$1,450,972,921 (subject to a variance of plus or minus 5.0%). The
purchase and
sale of the Mortgage Loans shall take place on June 28, 2005 or
such other date
as shall be mutually acceptable to the parties to this Agreement
(the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage
Loans shall consist of an amount equal to (i) 101.9384% of the
CGMRC Mortgage
Loan Balance as of the Cut-off Date, plus (ii) $4,224,600.96, which
amount
represents the amount of interest accrued on the CGMRC Mortgage
Loan Balance at,
in the case of the portion thereof attributable to each Mortgage
Loan,
the related Net Mortgage Rate for the period from and including the
Cut-off Date
up to but not including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the
Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the
Seller of the Aggregate Purchase Price and satisfaction or waiver
of the other
conditions to closing that are for the benefit of the Seller (which
conditions
shall be deemed to have been satisfied or waived upon the Seller's
receipt of
the Aggregate Purchase Price), the Seller does hereby sell,
transfer, assign,
set over and otherwise convey to the Purchaser, without recourse
(except as set
forth in this Agreement), all the right, title and interest of the
Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as
of such date,
on a servicing released basis, together with all of the Seller's
right, title
and interest in and to the proceeds of any related title, hazard,
primary
mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date but collected after the Cut-off Date,
and
recoveries of principal and interest collected on or before the
Cut-off Date
(only in respect of principal and interest on the Mortgage Loans
due on or
before the Cut-off Date and principal prepayments thereon), shall
belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the
Purchaser, deliver to the Trustee (with a copy to the Master
Servicer and the
Special Servicer within ten Business Days of the Closing Date), the
documents
and instruments specified below with respect to each Mortgage Loan
(each a
"Mortgage File"). All Mortgage Files so delivered will be held by
the Trustee in
escrow for the benefit of the Seller at all times prior to the
Closing Date.
Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and
all
intervening endorsements thereon, endorsed on its face or by
allonge
attached thereto (without recourse, representation or warranty,
express or
implied) to the order of LaSalle Bank National Association, as
trustee for
the registered holders of Citigroup Commercial Mortgage Trust
2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 or in
blank
(or a lost note affidavit and indemnity with a copy of such
Mortgage Note
attached thereto);
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet
returned
by the applicable
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recording office) with evidence of recording indicated thereon or
certified
by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with any
and all intervening assignments thereof, in each case (unless not
yet
returned by the applicable recording office) with evidence of
recording
indicated thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank,
the name
of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases
(if such item is a document separate from the Mortgage) and (C) any
other
recorded document relating to the Mortgage Loan otherwise included
in the
Mortgage File, in favor of LaSalle Bank National Association, as
trustee
for the registered holders of Citigroup Commercial Mortgage Trust
2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 (and,
in the
case of an A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant
to clause
(iv) above), in favor of LaSalle Bank National Association, as
trustee for
the registered holders of Citigroup Commercial Mortgage Trust
2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 (and,
in the
case of an A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms
or provisions of the Mortgage or Mortgage Note have been
consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located,
an original or copy of an irrevocable, binding commitment (which
may be a
pro forma policy or marked version of the policy that has been
executed by
an authorized representative of the title company or an agreement
to
provide the same pursuant to binding escrow instructions executed
by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any
prior
UCC Financing Statements in favor of the originator of the Mortgage
Loan or
in favor of any assignee prior to the Trustee (but only to the
extent the
Seller had possession of such UCC Financing Statements when it was
to
deliver the subject Mortgage File on or prior to the Closing Date)
and, if
there is an effective UCC Financing Statement and continuation
statement in
favor of the Seller on record with the applicable public office for
UCC
Financing Statements, an original UCC Financing Statement
assignment, in
form suitable for filing
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in favor of LaSalle Bank National Association, as trustee for the
registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 (and,
in the
case of any A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), as assignee, or in blank;
(ix) an original or a copy of (A) any Ground Lease and (B) any
loan guaranty, indemnity, ground lessor estoppel or environmental
insurance
policy or lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor (including, in the case of an
A-Note
Mortgage Loan, any related A/B Intercreditor Agreement) and any
intercreditor agreement relating to mezzanine debt related to the
Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to the Mortgage Loan;
(xii) a copy of any letter of credit and related transfer
documents relating to the Mortgage Loan (with the originals thereof
to be
delivered to the Master Servicer);
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable
transfer or
assignment documents; and
(xiv) with respect to each B-Note Loan, all of the above
documents with respect to such B-Note Loan and the related A/B
Intercreditor Agreement; provided that a copy of the Mortgage Note
relating
to each B-Note Loan, rather than the original, shall be provided,
and no
endorsements to such note shall be provided.
(d) The Seller shall take all actions reasonably necessary to
permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d)
of the
Pooling and Servicing Agreement, including bearing the
out-of-pocket costs and
expenses of the Trustee in connection with the performance by the
Trustee of its
recording, filing and delivery obligations pursuant to Section
2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except draft documents,
attorney-client
privileged communications and internal correspondence, credit
underwriting or
due diligence analyses, credit committee briefs or memoranda or
other internal
approval documents or data or internal worksheets, memoranda,
communications or
evaluations and other underwriting analysis of the Seller) relating
to, and
necessary for the servicing and administration of, each Mortgage
Loan and in the
Seller's possession that are not required to be delivered to the
Trustee shall
promptly be delivered or caused to be delivered by the Seller to
the Master
Servicer or at the direction of the Master Servicer to the
appropriate
sub-servicer, together with any related escrow amounts and reserve
amounts.
(f) The Seller shall take such actions as are reasonably necessary
to
assign or otherwise grant to the Trust Fund the benefit of any
letters of credit
in the name of the Seller
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which secure any Mortgage Loan. Without limiting the generality of
the
foregoing, if a draw upon a letter of credit is required before its
transfer to
the Trust Fund can be completed, the Seller shall draw upon such
letter of
credit for the benefit of the Trust pursuant to written
instructions from the
Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing
and in good standing under the laws of the State of New York and
possesses
all requisite authority, power, licenses, permits and franchises to
carry
on its business as currently conducted by it and to execute,
deliver and
comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due
authorization,
execution and delivery hereof by the Purchaser, constitutes a
legal, valid
and binding obligation of the Seller, enforceable against the
Seller in
accordance with its terms, except as such enforcement may be
limited by
bankruptcy, insolvency, reorganization, receivership, moratorium
and other
laws affecting the enforcement of creditors' rights in general and
by
general equity principles (regardless of whether such enforcement
is
considered in a proceeding in equity or at law), and by public
policy
considerations underlying the securities laws, to the extent that
such
public policy considerations limit the enforceability of the
provisions of
this Agreement which purport to provide indemnification from
liabilities
under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's certificate of
incorporation or
bylaws, (B) violate any law or regulation or any administrative
decree or
order to which it is subject or (C) constitute a material default
(or an
event which, with notice or lapse of time, or both, would
constitute a
material default) under, or result in the breach of, any material
contract,
agreement or other instrument to which the Seller is a party or by
which
the Seller is bound, which default might have consequences that
would, in
the Seller's reasonable and good faith judgment, materially and
adversely
affect the condition (financial or other) or operations of the
Seller or
its properties or have consequences that would materially and
adversely
affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default might
have consequences that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the condition (financial
or
other) or operations of the Seller or its properties or have
consequences
that would materially and adversely affect its performance
hereunder;
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(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws
or any
other corporate restriction or any judgment, order, writ,
injunction,
decree, law or regulation that would, in the Seller's reasonable
and good
faith judgment, materially and adversely affect the ability of the
Seller
to perform its obligations under this Agreement or that requires
the
consent of any third person to the execution of this Agreement or
the
performance by the Seller of its obligations under this Agreement
(except
to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of, or compliance by the Seller with,
this
Agreement or the consummation of the transactions contemplated by
this
Agreement except as have previously been obtained, and no bulk sale
law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good
faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of
its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the
transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans
to the
Purchaser in exchange for consideration consisting of the Aggregate
Purchase Price. The consideration received by the Seller upon the
sale of
the Mortgage Loans to the Purchaser will constitute at least
reasonably
equivalent value and fair consideration for the Mortgage Loans. The
Seller
will be solvent at all relevant times prior to, and will not be
rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The
Seller
is not selling the Mortgage Loans to the Purchaser with any intent
to
hinder, delay or defraud any of the creditors of the Seller.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I
and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the
Purchaser and
the Trustee (for the benefit of the Certificateholders), which
representations
and warranties are subject to the exceptions set forth on Schedule
III.
(c) If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement
relating to a Mortgage Loan, then the Seller shall, not later than
90 days (or,
if applicable, such shorter period contemplated by Section 3(g))
from receipt of
such notice (or, in the case of a Document Defect or Breach
relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC
Provisions (a "Qualified Mortgage"), not later than 90 days (or, if
applicable,
such shorter period contemplated by Section 3(g)) from any party to
the Pooling
and Servicing Agreement discovering such Document Defect or Breach,
provided the
Seller receives such notice in a timely manner), if such Document
Defect or
Breach shall materially and adversely affect the
6
value of the applicable Mortgage Loan, the interests of the Trust
therein or the
interests of any Certificateholder, cure such Document Defect or
Breach, as the
case may be, in all material respects, which shall include payment
of actual
losses and any Additional Trust Fund Expenses directly resulting
therefrom or,
if such Document Defect or Breach (other than omissions solely due
to a document
not having been returned by the related recording office) cannot be
cured within
such 90-day period (or, if applicable, such shorter period
contemplated by
Section 3(g)), (i) repurchase the affected Mortgage Loan at the
applicable
Purchase Price not later than the end of such 90-day period (or, if
applicable,
such shorter period contemplated by Section 3(g)), or (ii)
substitute a
Qualified Substitute Mortgage Loan (other than with respect to the
Carolina
Place Mortgage Loan, for which no substitution shall be permitted)
for such
affected Mortgage Loan not later than the end of such 90-day period
(and in no
event later than the second anniversary of the Closing Date) and
pay the Master
Servicer for deposit into the Certificate Account, any Substitution
Shortfall
Amount in connection therewith; provided, however, that, if a
Document Defect
(other than a Document Defect specifically addressed in Section
3(g)) or Breach
is capable of being cured but not within such 90-day period and the
Seller has
commenced and is diligently proceeding with the cure of such
Document Defect or
Breach within such 90-day period, then unless such Document Defect
or Breach
would cause the Mortgage Loan not to be a Qualified Mortgage, such
Seller shall
have an additional 90 days to complete such cure (or, failing such
cure, to
repurchase or substitute for the related Mortgage Loan); and
provided, further,
that with respect to such additional 90-day period the Seller shall
have
delivered an officer's certificate to the Trustee setting forth
what actions the
Seller is pursuing in connection with the cure thereof and stating
that the
Seller anticipates that such Document Defect or Breach will be
cured within the
additional 90-day period; and provided, further, that no Document
Defect (other
than with respect to a Mortgage Note, Mortgage, title insurance
policy, Ground
Lease or any letter of credit) shall be considered to materially
and adversely
affect the value of the applicable Mortgage Loan, the interests of
the Trust
therein or the interests of any Certificateholder unless the
document with
respect to which the Document Defect exists is required in
connection with an
imminent enforcement of the mortgagee's rights or remedies under
the related
Mortgage Loan, defending any claim asserted by any Mortgagor or
third party with
respect to the related Mortgage Loan, establishing the validity or
priority of
any lien on any collateral securing the related Mortgage Loan or
for any
immediate significant servicing obligations. For a period of two
years from the
Closing Date, so long as there remains any Mortgage File relating
to a Mortgage
Loan as to which there is an uncured Document Defect, the Seller
shall provide
the officer's certificate to the Trustee described above as to the
reasons such
Document Defect remains uncured and as to the actions being taken
to pursue
cure. Notwithstanding the foregoing, the delivery of a commitment
to issue a
policy of lender's title insurance as described in paragraph 12 of
Schedule I
hereof in lieu of the delivery of the actual policy of lender's
title insurance
shall not be considered a Document Defect with respect to any
Mortgage Loan if
such actual policy of insurance is delivered to the Trustee or a
Custodian on
its behalf not later than the 90th day following the Closing Date.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution shall
be part of the Trust Fund. Periodic Payments due with respect
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to any Qualified Substitute Mortgage Loan on or prior to the
related date of
substitution shall not be part of the Trust Fund and shall be
remitted to the
Seller promptly following receipt.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage
Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach
does not
constitute a Document Defect or Breach, as the case may be, as to
any other
Crossed Loan in such Crossed Group (without regard to this
paragraph), then the
applicable Document Defect or Breach, as the case may be, will be
deemed to
constitute a Document Defect or Breach, as the case may be, as to
each other
Crossed Loan in the Crossed Group for purposes of this paragraph,
and the Seller
will be required to repurchase or substitute for the remaining
Crossed Loan(s)
in the related Crossed Group as provided in the immediately
preceding paragraph
unless such other Crossed Loans in such Crossed Group satisfy the
Crossed Loan
Repurchase Criteria and satisfy all other criteria for substitution
or
repurchase, as applicable, of Mortgage Loans set forth herein or in
the Pooling
and Servicing Agreement. In the event that the remaining Crossed
Loans satisfy
the aforementioned criteria, the Seller may elect either to
repurchase or
substitute for only the affected Crossed Loan as to which the
related Document
Defect or Breach exists or to repurchase or substitute for all of
the Crossed
Loans in the related Crossed Group. The Seller shall be responsible
for the cost
of any Appraisal required to be obtained by the Master Servicer to
determine if
the Crossed 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). To the extent that the Seller is
required to purchase
or substitute for a Crossed Loan hereunder in the manner prescribed
above while
the Purchaser continues to hold any other Crossed Loans in such
Crossed Group,
neither the Seller nor the Purchaser shall enforce any remedies
against the
other's Primary Collateral, but each is permitted to exercise
remedies against
the Primary Collateral securing its respective Crossed Loans,
including, with
respect to the Purchaser, the Primary Collateral securing the
Crossed Loans
still held by the Purchaser, so long as such exercise does not
materially impair
the ability of the other party to exercise its remedies against its
Primary
Collateral.
If the exercise of remedies by one party would materially impair
the
ability of the other party to exercise its remedies with respect to
the Primary
Collateral securing the Crossed Loans held by such party, then the
Seller and
the Purchaser shall forbear from exercising such remedies until the
Mortgage
Loan documents evidencing and securing the relevant Crossed Loans
can be
modified in a manner that complies with this Agreement to remove
the threat of
material impairment as a result of the exercise of remedies or some
other
accommodation can be reached. Any reserve or other cash collateral
or letters of
credit securing the Crossed Loans shall be allocated between such
Crossed Loans
in accordance with the Mortgage Loan documents or otherwise on a
pro rata basis
based upon their outstanding Stated Principal Balances.
Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified
to terminate
the related cross-collateralization and/or cross-default
provisions, as a
condition to such modification, the Seller shall furnish to the
Trustee an
Opinion of Counsel that such modification shall not cause an
Adverse REMIC
Event. Any expenses incurred by the Purchaser in connection with
such
modification or accommodation (including but not limited to
recoverable attorney
fees) shall be paid by the Seller.
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(e) In connection with any permitted repurchase or substitution of
one
or more Mortgage Loans contemplated hereby, upon receipt of a
certificate from a
Servicing Officer certifying as to the receipt of the Purchase
Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate
Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for
the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer,
respectively, if applicable, (i) the Trustee shall execute and
deliver such
endorsements and assignments as are provided to it by the Master
Servicer, in
each case without recourse, representation or warranty, as shall be
necessary to
vest in the Seller, the legal and beneficial ownership of each
repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the
Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each
tender to the
Seller, upon delivery to each of them of a receipt executed by the
Seller, all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special
Servicer
shall release to the Seller any Escrow Payments and Reserve Funds
held by it in
respect of such repurchased or deleted Mortgage Loans.
(f) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the
Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and
warranties
are being made for risk allocation purposes. This Section 3
provides the sole
remedy available to the Certificateholders, or the Trustee on
behalf of the
Certificateholders, respecting any Document Defect in a Mortgage
File or any
Breach of any representation or warranty set forth in or required
to be made
pursuant to this Section 3.
(g) Notwithstanding any other provision of this Agreement to the
contrary, if any Specially Designated Mortgage Loan Document is
identified on
the schedule of exceptions delivered by the Trustee on the Closing
Date pursuant
to the Pooling and Servicing Agreement, the Seller shall cure any
material
exception identified therein within 15 Business Days (or, in the
reasonable
discretion of the Controlling Class Representative, 30 Business
Days) following
the Closing Date (for the avoidance of doubt, any deficiencies with
respect to a
Mortgage resulting solely from a delay in the return of the related
documents
from the applicable recording office, shall not be subject to the
provision of
this Section 3(g)). If such Document Defect is not so cured, the
Seller shall:
(1) repurchase the related Mortgage Loan, (2) with respect to
exceptions
relating to item identified in Section 2(c)(xii), deposit with the
Special
Servicer an amount, to be held in trust in a Special Reserve
Account pursuant to
the Pooling and Servicing Agreement, equal to the amount of the
undelivered
letter of credit (or, in the alternative, the Seller may deliver to
the Trustee,
with a certified copy to the Master Servicer, a replacement letter
of credit for
the benefit of the Master Servicer on behalf of the Trustee and
upon the same
terms and conditions as the undelivered letter of credit), which
the Master
Servicer or the Special Servicer, as the case may be, on behalf of
the Trust,
may use (or draw upon, as the case may be) under the same
circumstances and
conditions as the Master Servicer would have been entitled to draw
on the
undelivered letter of credit, or (3) with respect to any exceptions
relating to
the items identified in Sections 2(c)(i), 2(c)(ii) and 2(c)(vii),
deposit with
the Special Servicer an amount, to be held in trust in a Special
Reserve Account
pursuant to the Pooling and Servicing Agreement, equal to 25% of
the Stated
Principal Balance of the related Mortgage Loan on such date. Any
funds or letter
of credit deposited pursuant to clauses (2) and (3) above shall be
held by the
appropriate servicer until the earlier of (x) the date on which the
Master
Servicer certifies to the Trustee and the Controlling Class
Representative that
such exception has been cured, at
9
which time such funds or letter of credit, as applicable, shall be
returned to
the Seller and (y) 30 Business Days or, if the Controlling Class
Representative
has extended the cure period, 45 Business Days after the Closing
Date; provided,
however, that if such exception is not cured within such
30-Business Day or
45-Business Day period, as the case may be, (A) in the case of
clause (2) above
the Special Servicer shall retain the funds (on deposit in the
Special Reserve
Account) or letter of credit, as applicable, or (B) in the case of
clause (3),
the Seller shall repurchase the related Mortgage Loan in accordance
with the
terms and conditions of this Agreement, at which time such funds
shall be
applied to the Purchase Price of the related Mortgage Loan and any
letter of
credit shall be returned to the Seller.
The Seller may direct the Special Servicer to invest or cause the
investment of the funds deposited in a Special Reserve Account in
Permitted
Investments that bear interest or are sold at a discount and that
mature, unless
payable on demand, no later than the Business Day prior to the next
P&I Advance
Date, provided, that in the absence of appropriate and timely
written
instructions from the Seller, the Special Servicer shall not have
any obligation
to invest, or direct the investment of, funds in a Special Reserve
Account. All
income and gain realized from the investment of funds deposited in
a Special
Reserve Account shall be for the benefit of the Seller. The Seller
shall remit
to the Trustee from its own funds for deposit into any Special
Reserve Account
the amount of any Net Investment Loss (net of Net Investment
Earnings) in
respect of such Permitted Investments immediately upon realization
of such Net
Investment Losses and receipt of written notice thereof from the
Trustee,
provided, that the Seller shall not be required to deposit any loss
on an
investment of funds in the Special Reserve Account if such loss is
incurred
solely as a result of the insolvency of the federal or state
chartered
depository institution or trust company that holds such Special
Reserve Account
so long as such depository institution is not the same entity as
the Seller or
an affiliate thereof. Any Special Reserve Account shall be
beneficially owned by
the Seller, who shall be taxable on all income, if any, with
respect thereto.
(h) Notwithstanding any other provision of this Agreement to the
contrary, if there exists a Breach relating to whether or not the
Mortgage Loan
documents or any particular Mortgage Loan document requires the
related
Mortgagor to bear the costs and expenses associated with any
particular action
or matter under such Mortgage Loan document(s) that is a subject of
matters
described in representations 23 and 43 set forth in Schedule I to
this
Agreement, then the Purchaser shall direct the Seller in writing to
wire
transfer to the Master Servicer for deposit into the Certificate
Account, within
90 days of the Seller's receipt of such direction, the amount of
any such costs
and expenses borne by the Purchaser, the Certificateholders, the
Master
Servicer, the Special Servicer or the Trustee on their behalf that
are the basis
of such Breach. Upon its making such deposit, the Seller shall be
deemed to have
cured such Breach in all respects. To the extent that the required
payment
referred to in the second preceding sentence is made in full, this
paragraph
describes the sole remedy available to the Purchaser, the
Certificateholders,
the Master Servicer, the Special Servicer and the Trustee on their
behalf
regarding any such Breach and the Seller shall not be obligated to
repurchase
the affected Mortgage Loan on account of such Breach or otherwise
cure such
Breach.
10
SECTION 4. Representations and Warranties of the Purchaser. In
order
to induce the Seller to enter into this Agreement, the Purchaser
hereby
represents and warrants for the benefit of the Seller as of the
date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has
the full corporate power and authority and legal right to acquire
the Mortgage
Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and
delivered by the Purchaser, all requisite action by the Purchaser's
directors
and officers has been taken in connection therewith, and (assuming
the due
authorization, execution and delivery hereof by the Seller) this
Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (i) laws relating to bankruptcy, insolvency,
reorganization,
receivership or moratorium, (ii) other laws relating to or
affecting the rights
of creditors generally, or (iii) general equity principles
(regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(c) Except as may be required under federal or state securities
laws
(and which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required, under federal or
state law, for
the execution, delivery and performance by the Purchaser of or
compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser
of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the
execution, delivery
or performance of this Agreement by the Purchaser, results or will
result in the
creation or imposition of any lien on any of the Purchaser's assets
or property,
or conflicts or will conflict with, results or will result in a
breach of, or
constitutes or will constitute a default under (i) any term or
provision of the
Purchaser's articles of association or bylaws, (ii) any term or
provision of any
material agreement, contract, instrument or indenture, to which the
Purchaser is
a party or by which the Purchaser is bound, or (iii) any law, rule,
regulation,
order, judgment, writ, injunction or decree of any court or
governmental
authority having jurisdiction over the Purchaser or its assets,
which default
might have consequences that would, in the Purchaser's reasonable
and good faith
judgment, materially and adversely affect the condition (financial
or other) or
operations of the Purchaser or its properties or have consequences
that would
materially and adversely affect its performance hereunder.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will
report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for
consideration
consisting of the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending
or
to the knowledge of the Purchaser, threatened against the Purchaser
in any court
or by or before any
11
other governmental agency or instrumentality which would, in the
Purchaser's
reasonable and good faith judgment, materially and adversely affect
the validity
of this Agreement or any action taken in connection with the
obligations of the
Purchaser contemplated herein, or which would be likely to impair
materially the
ability of the Purchaser to enter into and/or perform under the
terms of this
Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or governmental agency, which default might have
consequences that
would materially and adversely affect the condition (financial or
other) or
operations of the Purchaser or its properties or might have
consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Sidley Austin Brown
& Wood LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth
in or made pursuant to Section 3(a) and Section 3(b) of this
Agreement and all
of the representations and warranties of the Purchaser set forth in
Section 4 of
this Agreement shall be true and correct in all material respects
as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the
obligations of the Seller hereunder) and all documents specified in
Section 6 of
this Agreement (the "Closing Documents"), in such forms as are
agreed upon and
acceptable to the Purchaser, the Seller, the Underwriters, the
Initial
Purchasers and their respective counsel in their reasonable
discretion, shall be
duly executed and delivered by all signatories as required pursuant
to the
respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a
Custodian on its behalf) and the Master Servicer, respectively, all
documents
represented to have been or required to be delivered to the Trustee
and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) 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 and the Purchaser shall each have
the ability
to comply with all terms and conditions and perform all duties and
obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to
the Purchaser or otherwise pursuant to this Agreement as of the
Closing Date;
and
(f) Letters from the independent accounting firm of Ernst &
Young LLP
in form satisfactory to the Purchaser, relating to certain
12
information regarding the Mortgage Loans and Certificates as set
forth in the
Prospectus and Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer
of the Seller and dated the Closing Date, and upon which the
Purchaser, the
Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the
representations and warranties of the Seller in this Agreement are
true and
correct in all material respects at and as of the Closing Date with
the same
effect as if made on such date; and (ii) the Seller has, in all
material
respects, complied with all the agreements and satisfied all the
conditions on
its part that are required under this Agreement to be performed or
satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser may rely, to the effect that each individual who, as an
officer or
representative of the Seller, signed this Agreement or any other
document or
certificate delivered on or before the Closing Date in connection
with the
transactions contemplated herein, was at the respective times of
such signing
and delivery, and is as of the Closing Date, duly elected or
appointed,
qualified and acting as such officer or representative, and the
signatures of
such persons appearing on such documents and certificates are their
genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed
in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to
the effect
that (i) such officer has carefully examined the Specified Portions
(as defined
below) of the Prospectus Supplement and nothing has come to his
attention that
would lead him to believe that the Specified Portions of the
Prospectus
Supplement, as of the date of the Prospectus Supplement or as of
the Closing
Date, included or include any untrue statement of a material fact
relating to
the Mortgage Loans or the Seller or omitted or omit to state
therein a material
fact necessary in order to make the statements therein relating to
the Mortgage
Loans or the Seller, in light of the circumstances under which they
were made,
not misleading, and (ii) such officer has examined the Specified
Portions of the
Memorandum and nothing has come to his attention that would lead
him to believe
that the Specified Portions of the Memorandum, as of the date
thereof or as of
the Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein related to
the Mortgage
Loans or the Seller, in the light of the circumstances under which
they were
made, not misleading. The "Specified Portions" of the Prospectus
Supplement
shall consist of Annexes A-1, A-2, A-3, A-4, A-5 and B thereto
(insofar as the
information contained in such annexes
13
relates to the Mortgage Loans), the diskette which accompanies the
Prospectus
Supplement (insofar as such diskette is consistent with such
Annexes A-1, A-2,
A-3, A-4, A-5 and B) and the following sections of the Prospectus
Supplement (to
the extent they relate to the Seller or the Mortgage Loans and
exclusive of any
statements in such sections that purport to summarize the servicing
and
administration provisions of the Pooling and Servicing Agreement):
"Summary of
Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers,"
"Summary of
Prospectus Supplement--The Underlying Mortgage Loans and the
Mortgaged Real
Properties," "Risk Factors--Risks Related to the Underlying
Mortgage Loans," and
"Description of the Mortgage Pool." The "Specified Portions" of the
Memorandum
shall consist of the Specified Portions of the Prospectus
Supplement and
"Summary of the Offering Memorandum--Relevant Parties--Mortgage
Loan Sellers"
and "--Carolina Place Non-Trust Mortgage Loan Noteholder".
(e) The certificate of incorporation and by-laws of the Seller, and
a
certificate of good standing of the Seller issued by the State of
New York not
earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be
from in-house counsel, outside counsel or a combination thereof),
relating to
certain corporate and enforceability matters and reasonably
satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing
Date and
addressed to the Purchaser, the Trustee, the Underwriters, the
Initial
Purchasers and each of the Rating Agencies, together with such
other written
opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser
may reasonably request prior to the sale of the Mortgage Loans by
the Seller to
the Purchaser.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and
directors,
and each person, if any, who controls the Purchaser or any
Underwriter or
Initial Purchaser within the meaning of either Section 15 of the
Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the
Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all
losses, expenses
(including the reasonable fees and expenses of legal counsel),
claims, damages
or liabilities, joint or several, to which they or any of them may
become
subject under the 1933 Act, the 1934 Act or other federal or state
statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims,
damages or liabilities (or actions in respect thereof) (i) arise
out of or are
based upon any untrue statement or alleged untrue statement of a
material fact
contained in (A) the Prospectus Supplement, the Preliminary
Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are
required to be
filed as part of the Registration Statement pursuant to the
No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the
Registered
Certificates, or in any revision or amendment of or supplement to
any of the
foregoing, (B) any items similar to Computational Materials or ABS
Term Sheets
forwarded by the Seller to the Initial Purchasers, or in any
revision or
amendment of or supplement to any of the foregoing or (C) the
summaries,
reports, documents and other written and computer materials and all
other
information regarding the Mortgage Loans or the Seller furnished by
the Seller
for
14
review by prospective investors (the items in (A), (B) and (C)
above being
defined as the "Disclosure Material"), or (ii) arise out of or are
based upon
the omission or alleged omission to state in the Disclosure
Material (in the
case of Computational Materials and ABS Term Sheets, when read in
conjunction
with the Prospectus Supplement, in the case of items similar to
Computational
Materials and ABS Term Sheets, when read in conjunction with the
Memorandum, and
in the case of any summaries, reports, documents, written or
computer materials,
or other information contemplated in clause (C) above, when read in
conjunction
with the Memorandum) a material fact required to be stated therein
or necessary
to make the statements therein, in the light of the circumstances
under which
they were made, not misleading; but, with respect to the Disclosure
Material
described in clauses (A) and (B) of the definition thereof, only if
and to the
extent that (1) any such untrue statement or alleged untrue
statement or
omission or alleged omission occurring in, or with respect to, such
Disclosure
Material, arises out of or is based upon an untrue statement or
omission with
respect to the Mortgage Loans, the related Mortgagors and/or the
related
Mortgaged Properties contained in the Data File (it being herein
acknowledged
that the Data File was and will be used to prepare the Prospectus
Supplement and
the Preliminary Prospectus Supplement, including without limitation
Annexes A-1,
A-2, A-3, A-4, A-5 and B thereto, the Memorandum, the Diskette, any
Computational Materials and ABS Term Sheets with respect to the
Registered
Certificates and any items similar to Computational Materials and
ABS Term
Sheets forwarded to prospective investors in the Non-Registered
Certificates),
(2) any such untrue statement or alleged untrue statement or
omission or alleged
omission of a material fact occurring in, or with respect to, such
Disclosure
Material, is with respect to, or arises out of or is based upon an
untrue
statement or omission of a material fact with respect to, the
information
regarding the Mortgage Loans, the related Mortgagors, the related
Mortgaged
Properties and/or the Seller set forth in the Specified Portions
(which shall
include all statements in the sections constituting the Specified
Portions that
purport to summarize the terms of any intercreditor, co-lender or
similar
agreement relating to a Mortgage Loan, including, without
limitation, those
terms thereof that address servicing and administration) of each of
the
Prospectus Supplement, the Preliminary Prospectus Supplement and
the Memorandum,
(3) any such untrue statement or alleged untrue statement or
omission or alleged
omission occurring in, or with respect to, such Disclosure
Material, arises out
of or is based upon a breach of the representations and warranties
of the Seller
set forth in or made pursuant to Section 3 of this Agreement or (4)
any such
untrue statement or alleged untrue statement or omission or alleged
omission
occurring in, or with respect to, such Disclosure Material, arises
out of or is
based upon any other written information concerning the
characteristics of the
Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties
furnished to the Purchaser, the Underwriters and/or the Initial
Purchasers by
the Seller; provided that the indemnification provided by this
Section 7 shall
not apply to the extent that such untrue statement or omission of a
material
fact was made as a result of an error in the manipulation of, or in
any
calculations based upon, or in any aggregation of the information
regarding the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged
Properties
set forth in the Data File or Annexes A-1, A-2, A-3, A-4, A-5 and B
to the
Prospectus Supplement or the Preliminary Prospectus Supplement to
the extent
such information was not materially incorrect in the Data File or
such Annexes
A-1, A-2, A-3, A-4, A-5 and B, as applicable, including without
limitation the
aggregation of such information with comparable information
relating to the
Other Mortgage Loans. Notwithstanding the foregoing, the
15
indemnification provided in this Section 7(a) shall not inure to
the benefit of
any Underwriter or Initial Purchaser (or to the benefit of any
person
controlling such Underwriter or Initial Purchaser) from whom the
person
asserting claims giving rise to any such losses, claims, damages,
expenses or
liabilities purchased Certificates if (x) the subject untrue
statement or
omission or alleged untrue statement or omission made in any
Disclosure Material
(exclusive of the Prospectus or any corrected or amended Prospectus
or the
Memorandum or any corrected or amended Memorandum) is eliminated or
remedied in
the Prospectus or the Memorandum (in either case, as corrected or
amended, if
applicable), as applicable, and (y) a copy of the Prospectus or
Memorandum (in
either case, as corrected or amended, if applicable), as
applicable, shall not
have been sent to such person at or prior to the written
confirmation of the
sale of such Certificates to such person, and (z) in the case of a
corrected or
amended Prospectus or Memorandum, such Underwriter or Initial
Purchaser received
written notice of such correction or amendment prior to the written
confirmation
of such sale. The Seller shall, subject to clause (c) below,
reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably
incurred by them in connection with investigating or defending any
such loss,
claim, damage, liability or action. This indemnity will be in
addition to any
liability which the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-108125 filed by the
Purchaser on Form
S-3, including without limitation exhibits thereto and information
incorporated
therein by reference; "Base Prospectus" shall mean the prospectus
dated June 15,
2005, as supplemented by the prospectus supplement dated June 15,
2005 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including
all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the
prospectus
supplement dated June 15, 2005 relating to the Registered
Certificates,
including all annexes thereto; "Memorandum" shall mean the offering
memorandum
dated June 15, 2005, relating to the Non-Registered Certificates,
including all
exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2,
Class A-3, Class A-SB, Class A-4, Class A-1A, Class A-MFL, Class
A-M, Class A-J,
Class B, Class C and Class D Certificates; "Non-Registered
Certificates" shall
mean the Certificates other than the Registered Certificates;
"Computational
Materials" shall have the meaning assigned thereto in the no-action
letter dated
May 20, 1994 issued by the Division of Corporation Finance of the
Securities and
Exchange Commission (the "Commission") to Kidder, Peabody
Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated, and Kidder Structured
Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division
of
Corporation Finance of the Commission to the Public Securities
Association
(together, the "Kidder Letters"); "ABS Term Sheets" shall have the
meaning
assigned thereto in the no-action letter dated February 17, 1995
issued by the
Division of Corporation Finance of the Commission to the Public
Securities
Association (the "PSA Letter" and, together with the Kidder
Letters, the
"No-Action Letters"); "Diskette" shall mean the diskette or compact
disc
attached to each of the Prospectus and the Memorandum; and "Data
File" shall
mean the compilation of information and data regarding the Mortgage
Loans
covered by the agreed upon procedures letters dated June 6, 2005
and June 15,
2005 and rendered by Ernst & Young LLP (a "hard copy" of which
Data File was
initialed on behalf of the Seller and the Purchaser).
16
(c) As promptly as reasonably practicable after receipt by any
person
entitled to indemnification under this Section 7 (an "indemnified
party") of
notice of the commencement of any action, such indemnified party
will, if a
claim in respect thereof is to be made against the Seller (the
"indemnifying
party") under this Section 7, notify the indemnifying party in
writing of the
commencement thereof; but the omission so to notify the
indemnifying party will
not relieve it from any liability that it may have to any
indemnified party
under this Section 7 (except to the extent that such omission has
prejudiced the
indemnifying party in any material respect) or from any liability
which it may
have otherwise than under this Section 7. In case any such action
is brought
against any indemnified party and it notifies the indemnifying
party of the
commencement thereof, the indemnifying party will be entitled to
participate
therein, and to the extent that it may elect by written notice
delivered to the
indemnified party promptly after receiving the aforesaid notice
from such
indemnified party, to assume the defense thereof, with counsel
selected by the
indemnifying party and reasonably satisfactory to such indemnified
party;
provided, however, that if the defendants in any such action
include both the
indemnified party and the indemnifying party and the indemnified
party or
parties shall have reasonably concluded that there may be legal
defenses
available to it or them and/or other indemnified parties that are
different from
or additional to those available to the indemnifying party, the
indemnified
party shall have the right to select separate counsel to assert
such legal
defenses and to otherwise participate in the defense of such action
on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying
party to such indemnified party of its election so to assume the
defense of such
action and approval by the indemnified party of counsel selected by
the
indemnifying party, the indemnifying party will not be liable for
any legal or
other expenses subsequently incurred by such indemnified party in
connection
with the defense thereof, unless (i) the indemnified party shall
have employed
separate counsel in connection with the assertion of legal defenses
in
accordance with the proviso to the preceding sentence (it being
understood,
however, that the indemnifying party shall not be liable for the
expenses of
more than one separate counsel, approved by the Purchaser and the
Underwriters
or the Initial Purchasers, as the case may be, representing all the
indemnified
parties under this Section 7 who are parties to such action), (ii)
the
indemnifying party shall not have employed counsel reasonably
satisfactory to
the indemnified party to represent the indemnified party within a
reasonable
time after notice of commencement of the action or (iii) the
indemnifying party
has authorized the employment of counsel for the indemnified party
at the
expense of the indemnifying party; and except that, if clause (i)
or (iii) is
applicable, such liability shall only be in respect of the counsel
referred to
in such clause (i) or (iii). Unless it shall assume the defense of
any
proceeding, an indemnifying party shall not be liable for any
settlement of any
proceeding effected without its written consent but, if settled
with such
consent or if there be a final judgment for the plaintiff, the
indemnifying
party shall indemnify the indemnified party from and against any
loss or
liability by reason of such settlement or judgment. Notwithstanding
the
foregoing sentence, if at any time an indemnified party shall have
requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of
counsel or any other expenses for which the indemnifying party is
obligated
under this subsection, the indemnifying party agrees that it shall
be liable for
any settlement of any proceeding effected without its written
consent if (i)
such settlement is entered into more than 45 days after receipt by
such
indemnifying party of the aforesaid request and (ii) such
indemnifying party
shall not have reimbursed the indemnified party in accordance with
such request
prior to the date of such
17
settlement. If an indemnifying party assumes the defense of any
proceeding, it
shall be entitled to settle such proceedings with the consent of
the indemnified
party or, if such settlement provides for an unconditional release
of the
indemnified party in connection with all matters relating to the
proceedings
that have been asserted against the indemnified party in such
proceeding by the
other parties to such settlement, which release does not include a
statement as
to or an admission of fault, culpability or a failure to act by or
on behalf of
any indemnified party without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or
insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then
the indemnifying party, in lieu of indemnifying such indemnified
party, shall
contribute to the amount paid or payable by such indemnified party
as a result
of such losses, claims, damages or liabilities, in such proportion
as is
appropriate to reflect the relative fault of the indemnified and
indemnifying
parties in connection with the statements or omissions which
resulted in such
losses, claims, damages or liabilities, as well as any other
relevant equitable
considerations, taking into account the parties' relative knowledge
and access
to information concerning the matter with respect to which the
claim was
asserted, the opportunity to correct and prevent any statement or
omission or
failure to comply, and any other equitable considerations
appropriate under the
circumstances. The relative fault of the indemnified and
indemnifying parties
shall be determined by reference to, among other things, whether
the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission
to state a material fact relates to information supplied by such
parties;
provided that no Underwriter or Initial Purchaser shall be
obligated to
contribute more than its share of underwriting discounts and
commissions and
other fees pertaining to the Certificates less any damages
otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss,
liability,
claim, damage or expense. It is hereby acknowledged that the
respective
Underwriters' and Initial Purchasers' obligations under this
Section 7 shall be
several and not joint. For purposes of this Section, each person,
if any, who
controls an Underwriter or an Initial Purchaser within the meaning
of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such
Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to
contribution
as such Underwriter or Initial Purchaser, as the case may be, and
each director
of the Seller and each person, if any who controls the Seller
within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just
and
equitable if contribution pursuant to Section 7(d) were determined
by pro rata
allocation or by any other method of allocation that does not take
account of
the considerations referred to in Section 7(d) above. The amount
paid or payable
by an indemnified party as a result of the losses, claims, damages
and
liabilities referred to in this Section 7 shall be deemed to
include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred
by such indemnified party in connection with investigating or
defending any such
action or claim, except where the indemnified party is required to
bear such
expenses pursuant to this Section 7, which expenses the
indemnifying party shall
pay as and when incurred, at the request of the indemnified party,
to the extent
that the indemnifying party will be ultimately obligated to pay
such expenses.
If any expenses so paid by the indemnifying party are subsequently
determined to
not be required to be borne by the indemnifying party hereunder,
the party that
received such payment shall promptly
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refund the amount so paid to the party which made such payment. No
person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933
Act) shall be entitled to contribution from any person who was not
guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect
regardless of (i)
any termination of this Agreement, (ii) any investigation made by
the Purchaser,
the Underwriters, the Initial Purchasers, any of their respective
directors or
officers, or any person controlling the Purchaser, the Underwriters
or the
Initial Purchasers, and (iii) acceptance of and payment for any of
the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial
Purchasers and their
directors, officers and controlling parties shall be third-party
beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's
pro rata
portion of the aggregate of the following amounts (the Seller's pro
rata portion
to be determined according to the percentage that the CGMRC
Mortgage Loan
Balance represents as of the Cut-off Date Pool Balance): (i) the
costs and
expenses of printing and delivering the Pooling and Servicing
Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise
reproducing)
and delivering a preliminary and final Prospectus and Memorandum
relating to the
Certificates; (iii) the initial fees, costs, and expenses of the
Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged
by the
Securities and Exchange Commission for registration of the
Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the
Certificates
so rated; (vi) the fees and disbursements of a firm of certified
public
accountants selected by the Purchaser and the Seller with respect
to numerical
information in respect of the Mortgage Loans and the Certificates
included in
the Prospectus, the Memorandum and any related Computational
Materials or ABS
Term Sheets, including in respect of the cost of obtaining any
"comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket
costs and
expenses in connection with the qualification or exemption of the
Certificates
under state securities or "Blue Sky" laws, including filing fees
and reasonable
fees and disbursements of counsel in connection therewith, in
connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment
by
institutional investors and the preparation of any legal investment
survey;
(viii) the expenses of printing any such "Blue Sky" survey and
legal investment
survey; and (ix) the reasonable fees and disbursements of counsel
to the
Underwriters and the Initial Purchasers; provided, however, Seller
shall pay (or
shall reimburse the Purchaser to the extent that the Purchaser has
paid) the
expense of recording any assignment of Mortgage or assignment of
Assignment of
Leases as contemplated by Section 2 hereof with respect to such
Seller's
Mortgage Loans. All other costs and expenses in connection with the
transactions
contemplated hereunder shall be borne by the party incurring such
expense.
SECTION 9. Grant of a Security Interest. It is the express intent
of
the parties hereto that the conveyance of the Mortgage Loans by the
Seller to
the Purchaser as provided in Section 2 hereof be, and be construed
as, a sale of
the Mortgage Loans by the Seller to the
19
Purchaser and not as a pledge of the Mortgage Loans by the Seller
to the
Purchaser to secure a debt or other obligation of the Seller.
However, if,
notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are
held to be property of the Seller, then, (a) it is the express
intent of the
parties that such conveyance be deemed a pledge of the Mortgage
Loans by the
Seller to the Purchaser to secure a debt or other obligation of the
Seller, and
(b) (i) this Agreement shall also be deemed to be a security
agreement within
the meaning of Article 9 of the Uniform Commercial Code of the
applicable
jurisdiction; (ii) the conveyance provided for in Section 2 hereof
shall be
deemed to be a grant by the Seller to the Purchaser of a security
interest in
all of the Seller's right, title and interest in and to the
Mortgage Loans, and
all amounts payable to the holder of the Mortgage Loans in
accordance with the
terms thereof, and all proceeds of the conversion, voluntary or
involuntary, of
the foregoing into cash, instruments, securities or other property,
including,
without limitation, all amounts, other than investment earnings,
from time to
time held or invested in the Certificate Account, the Distribution
Account or,
if established, the REO Account (each as defined in the Pooling and
Servicing
Agreement) whether in the form of cash, instruments, securities or
other
property; (iii) the assignment to the Trustee of the interest of
the Purchaser
as contemplated by Section 1 hereof shall be deemed to be an
assignment of any
security interest created hereunder; (iv) the possession by the
Trustee or any
of its agents, including, without limitation, the Custodian, of the
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 security interest
pursuant to
Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and
(v) notifications to persons (other than the Trustee) holding such
property, and
acknowledgments, receipts or confirmations from persons (other than
the Trustee)
holding such property, shall be deemed notifications to, or
acknowledgments,
receipts or confirmations from, financial intermediaries, bailees
or agents (as
applicable) of the secured party 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 deemed to 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.
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SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final
form of the
Memorandum and the preliminary and final forms of the Prospectus
Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands
and other communications required hereunder shall be in writing and
telecopied
or delivered to the intended recipient at the "Address for Notices"
specified
beneath its name on the signature pages hereof or, as to either
party, at such
other address as shall be designated by such party in a notice
hereunder to the
other party. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. 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 submitted 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 (and by the Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or
which is held to be void or unenforceable shall be ineffective to
the extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof. Any part, provision, representation, warranty or
covenant of
this Agreement that is prohibited or unenforceable or is held to be
void or
unenforceable in any 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 14. Counterparts. This Agreement may be executed in any
number
of counterparts, each of which shall be an original, but which
together shall
constitute one and the same agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE
GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 16. Attorneys' Fees. If any legal action, suit or
proceeding
is commenced between the Seller and the Purchaser regarding their
respective
rights and obligations under this Agreement, the prevailing party
shall be
entitled to recover, in addition to
21
damages or other relief, costs and expenses, attorneys' fees and
court costs
(including, without limitation, expert witness fees). As used
herein, the term
"prevailing party" shall mean the party which obtains the principal
relief it
has sought, whether by compromise settlement or judgment. If the
party which
commenced or instituted the action, suit or proceeding shall
dismiss or
discontinue it without the concurrence of the other party, such
other party
shall be deemed the prevailing party.
SECTION 17. 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 18. 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. The Purchaser has
the right to
assign its interest under this Agreement, in whole or in part, as
may be
required to effect the purposes of the Pooling and Servicing
Agreement, and the
assignee shall, to the extent of such assignment, succeed to the
rights and
obligations hereunder of the Purchaser. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser, the Underwriters and the Initial Purchasers (as intended
third party
beneficiaries hereof) and their permitted successors and assigns,
and the
officers, directors and controlling persons referred to in Section
7. This
Agreement is enforceable by the Underwriters, the Initial
Purchasers and the
other third party beneficiaries hereto in all respects to the same
extent as if
they had been signatories hereof.
SECTION 19. Amendments. No term or provision of this Agreement may
be
waived or modified unless such waiver or modification is in writing
and signed
by a duly authorized officer of the party, or third party
beneficiary, against
whom such waiver or modification is sought to be enforced. No
amendment to the
Pooling and Servicing Agreement which relates to defined terms
contained
therein, Section 2.01(d) thereof or the repurchase obligations or
any other
obligations of the Seller shall be effective against the Seller (in
such
capacity) unless the Seller shall have agreed to such amendment in
writing.
SECTION 20. Accountants' Letters. The parties hereto shall
cooperate
with Ernst & Young LLP in making available all information and
taking all steps
reasonably necessary to permit such accountants to deliver the
letters required
by the Underwriting Agreement.
SECTION 21. Knowledge. Whenever a representation or warranty or
other
statement in this Agreement is made with respect to a Person's
"knowledge," such
statement refers to such Person's employees or agents who were or
are
responsible for or involved with the indicated matter and have
actual knowledge
of the matter in question.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Seller and the Purchase
