EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of June 15, 2005 between IXIS REAL ESTATE CAPITAL INC. (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 $346,790,756.47 (the "IXIS
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
IXIS 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) 102.6424% of the IXIS
Mortgage
Loan Balance as of the Cut-off Date, plus (ii) $1,353,524.32, which
amount
represents the amount of interest accrued on the IXIS 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 recording office) with evidence of recording
indicated
thereon or certified by the applicable recording office;
2
(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, 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, 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 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, as
assignee, or in blank;
3
(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 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); and
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable
transfer or
assignment documents.
(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 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
4
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;
(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
5
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 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 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
6
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 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
7
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.
(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.
8
(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 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,
9
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.
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
10
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 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.
11
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 firms of Ernst &
Young LLP
and PricewaterhouseCoopers LLP in form satisfactory to the
Purchaser, relating
to certain 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
12
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 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".
13
(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 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
14
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
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
15
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 and covered by the
agreed upon procedures
letters dated June 2, 2005 and June 23, 2005 and rendered by
PricewaterhouseCoopers LLP, as the case may be (a "hard copy" of
which Data File
was initialed on behalf of the Seller and the Purchaser).
(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
16
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 i
