Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of November 8, 2006, between PNC BANK, NATIONAL ASSOCIATION, as
seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing
community mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as "Annex 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"), to be dated as of November 1, 2006, among CCMSI, as
depositor,
Midland Loan Services, Inc. and Wachovia Bank, National
Association, as master
servicers (each a "Master Servicer" and, together, the "Master
Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer"), Wells
Fargo Bank,
National Association, as trustee (the "Trustee") and LaSalle Bank
National
Association, as certificate administrator (the "Certificate
Administrator").
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.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc.
("CGMI"),
LaSalle Financial Services, Inc., PNC Capital Markets LLC and Banc
of America
Securities LLC (collectively, the "Dealers"), pursuant to an
underwriting
agreement dated as of the date hereof (the "Underwriting
Agreement"), between
CCMSI and the Dealers. The Publicly Offered Certificates are more
particularly
described in a prospectus supplement dated November 8, 2006 (the
"Prospectus
Supplement") and the accompanying base prospectus dated June 8,
2006 (the "Base
Prospectus" and, together with the Prospectus Supplement, the
"Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI,
pursuant to a
certificate purchase agreement dated as of the date hereof (the
"Certificate
Purchase Agreement"), between CCMSI and CGMI. The Privately Offered
Certificates
are more particularly described in an offering memorandum dated
November 8, 2006
(the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Moody's Investors Service, Inc. and/or Fitch, Inc. (together, the
"Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof
(the
"Indemnification Agreement"), between the Seller, CCMSI and the
Dealers.
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 as of the close of business on the
Cut-off Date
(the "Seller Mortgage Loan Balance") of $280,838,443 (subject to a
variance of
plus or minus 5.0%), after giving effect to any payments due on or
before such
date, whether or not such payments are received. The Seller
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
$2,238,772,692 (subject to a variance of plus or minus 5.0%). The
purchase and
sale of the Mortgage Loans shall take place on November 21, 2006 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 a cash amount, payable in
immediately available
funds, as reflected on the settlement statement agreed to by the
Seller and the
Purchaser, which amount shall include interest accrued on the
Seller Mortgage
Loan Balance 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, 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 and any
escrow,
reserve or comparable accounts related to the Mortgage Loans,
subject, in the
case of any Mortgage Loan that is part of a Loan Combination, to
the rights of
the holder(s) of any other mortgage loan(s) in the related Loan
Combination in
such proceeds and reserve or comparable accounts, and further
subject to the
understanding that the Seller will sell certain servicing rights to
the
applicable Master Servicer pursuant to that certain Servicing
Rights Purchase
Agreement, dated as of the Closing Date, between such Master
Servicer and the
Seller, and may require that a particular primary servicer remain
in place with
respect to any or all of the Mortgage Loans.
(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
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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 or cause to be delivered to the Trustee (with a
copy to the
applicable Master Servicer and the Special Servicer within ten (10)
Business
Days after the Closing Date) the documents and instruments
specified below under
clauses (i), (ii), (vii), (ix)(A) and (xi)(D) and shall, not later
than the date
that is 30 days after the Closing Date, deliver or cause to be
delivered to the
Trustee (with a copy to the applicable Master Servicer) the
remaining documents
and instruments specified below, in each case with respect to each
Mortgage Loan
that is a Serviced Trust Mortgage Loan (the documents and
instruments specified
below, collectively, the "Mortgage File"). The Mortgage File for
each Serviced
Trust Mortgage Loan shall contain the following documents:
(i) either (A) in the case of any Serviced Trust Mortgage Loan
(including any A-Note Trust Mortgage Loan), 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 "Wells Fargo Bank,
National
Association., as trustee for the registered holders of Citigroup
Commercial
Mortgage Trust 2006-C5, Commercial Mortgage Pass-Through
Certificates,
Series 2006-C5", or in blank (or a lost note affidavit and
indemnity with a
copy of such Mortgage Note attached thereto) or (B) in the case of
any
B-Note Non-Trust Mortgage Loan, a copy of the executed Mortgage
Note;
(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;
(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 subject Mortgage Loan otherwise
included
in the Mortgage File, in favor of "Wells Fargo Bank, National
Association,
as trustee for the registered holders of Citigroup Commercial
Mortgage
Trust 2006-
3
C5, Commercial Mortgage Pass-Through Certificates, Series 2006-C5"
(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 Trust Mortgage Loan (to the extent not already assigned
pursuant to
clause (iii) above), in favor of "Wells Fargo Bank, National
Association,
as trustee for the registered holders of Citigroup Commercial
Mortgage
Trust 2006-C5, Commercial Mortgage Pass-Through Certificates,
Series
2006-C5" (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 subject 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 specimen version of, or a marked commitment
for, 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 subject
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),
unless not yet returned by the applicable filing office; and, if
there is
an effective UCC Financing 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
"Wells Fargo Bank, National Association, as trustee for the
registered
holders of Citigroup Commercial Mortgage Trust 2006-C5, Commercial
Mortgage
Pass-Through Certificates, Series 2006-C5" (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 any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental
insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement or (D) letter of credit relating to a Trust
Mortgage
Loan (with the original of any such letter of credit to be
delivered to the
applicable Master Servicer).
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With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of
any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the
requirements of
this Agreement for delivery of such document as a part of the
Mortgage File of
each of the other Crossed Loans in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage
Loan has not
been properly executed, is missing (beyond the time period required
for its
delivery hereunder), contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall,
as to each
Mortgage Loan, promptly (and in any event, as to any Mortgage Loan,
within 90
days following the latest of (i) the Closing Date and (ii) the
delivery of the
related Mortgage(s), Assignment(s) of Leases, recordable documents,
and UCC
Financing Statements to the Trustee complete (if and to the extent
necessary)
and cause to be submitted for recording or filing, as the case may
be, in the
appropriate public office for real property records or UCC
Financing Statements,
as appropriate, each assignment of Mortgage, assignment of
Assignment of Leases
and assignment of any other recordable documents relating to each
such Mortgage
Loan, in favor of the Trustee referred to in Sections 2(c)(iv)(A),
(B) and (C)
and each assignment of a UCC Financing Statement in favor of the
Trustee and so
delivered to the Trustee and referred to in Section 2(c)(viii). The
Seller shall
cause the recorded original of each such assignment of recordable
documents to
be delivered to the Trustee or its designee following recording,
and shall cause
the file copy of each such UCC Financing Statement to be delivered
to the
Trustee or its designee following filing; provided that in those
instances where
the public recording office retains the original assignment of
Mortgage or
assignment of Assignment of Leases, the Seller or the
Recording/Filing Agent
shall obtain therefrom a certified copy of the recorded original,
which shall be
delivered to the Trustee or its designee. If any such document or
instrument is
lost or returned unrecorded or unfiled, as the case may be, because
of a defect
therein, the Seller shall promptly prepare or cause to be prepared
a substitute
therefor or cure such defect, as the case may be, and thereafter
cause the same
to be duly recorded or filed, as appropriate. The Seller shall be
responsible
for the out-of-pocket costs and expenses of the Recording/Filing
Agent in
connection with its performance of the recording, filing and
delivery
obligations contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i)
within ten
(10) days after the Closing Date, all documents and records in the
Seller's
possession (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 that are
not required to
be part of the Mortgage File in accordance with the definition
thereof
(including, without limitation, any original letters of credit
relating to any
Mortgage Loan); and (ii) within two (2) Business Days after the
Closing Date,
any and all escrow amounts and reserve amounts in the Seller's
possession or
under its control that relate to the Mortgage Loans.
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(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 applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to
suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
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 national banking association organized and
validly existing and in good standing under the laws of the United
States
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, as
they may
be applied in the context of the insolvency of a national banking
association, 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 organizational
documents, (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 violation, default or breach, in the
case of
either clause (iii)(B) or (iii)(C) might have consequences that
would, in
the Seller's reasonable and good faith judgment, materially and
adversely
affect the financial condition or the operations of the Seller or
its
properties (taken as a whole) or have consequences that would
materially
and adversely affect its performance hereunder;
6
(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 financial condition
or the
operations of the Seller or its properties (taken as a whole) 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 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 involving the
Seller
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) For purposes of accounting 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
contemplated by this Agreement. 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 transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the
creditors
of the Seller or on account of an antecedent debt.
(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,
which representations and warranties are subject to the exceptions
set forth on
Schedule III. References in this Agreement to "Breach" mean a
breach of any such
representations and warranties made pursuant to this Section 3(b)
with respect
to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the
Pooling
and Servicing Agreement, written notice of a Document Defect or a
Breach
relating to a Mortgage Loan, and if such Document Defect or Breach
shall
materially and adversely affect the value of
7
the applicable Mortgage Loan or the interests of the
Certificateholders therein,
then the Seller shall, not later than ninety (90) days 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 ninety (90) days 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), cure
such Document
Defect or Breach, as the case may be, in all material respects, 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, (i) repurchase the affected Mortgage Loan at
the applicable
Purchase Price not later than the end of such 90-day period, 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 applicable Master
Servicer for
deposit into its Collection Account, any Substitution Shortfall
Amount in
connection therewith; provided that, if a Document Defect 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 if the cure
of any
Document Defect or Breach would require an expenditure on the part
of the Seller
in excess of $10,000, then the Seller may, at its option, within
the time period
provided above, elect to purchase or replace the affected Mortgage
Loan in
accordance with this Section 3 without attempting to cure such
Document Defect
that, to the Seller's knowledge, existed as of the Closing Date, or
Breach, as
the case may be. 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 that shall materially and adversely
affect the value
of the applicable Mortgage Loan or the interests of the
Certificateholders
therein, 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.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date in such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related due date in
the month of
substitution shall be part of the Trust Fund, and Periodic Payments
received
with respect to the replaced Mortgage Loan or a repurchased
Mortgage Loan after
the related date of substitution or repurchase, as the case may be,
shall belong
to the Seller. Periodic Payments due with respect to any Qualified
Substitute
Mortgage Loan on or prior to the related due date in the month of
substitution
shall not be part of the Trust Fund and shall be remitted to the
Seller promptly
following receipt, and Periodic Payments received with respect to
the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including
the related
date of substitution or repurchase, as the case may be, shall
belong to the
Trust Fund.
8
(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: (x) such other Crossed Loans in such Crossed Group satisfy
the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall
have furnished
the Trustee with an Opinion of Counsel to the effect that the
repurchase of or
substitution for the affected Crossed Loan only, including, without
limitation,
any modification required with respect to such repurchase or
substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or
substitution for
the affected Crossed Loan only shall satisfy all other criteria for
repurchase
or substitution, as applicable, of Mortgage Loans set forth herein
or in the
Pooling and Servicing Agreement. If the conditions set forth in
clauses (x), (y)
and (z) of the prior sentence are satisfied, 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
applicable 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, if not specified
in the
related Mortgage Loan documents, 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.
9
Notwithstanding any of the foregoing provisions of this Section
3(d),
if there is a Document Defect or Breach (which Document Defect or
Breach shall
materially and adversely affect the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and, to the extent not
covered by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee,
the
Certificate Administrator or the Trust Fund in connection with such
release,
(ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set
forth in the related Mortgage Loan documents and the Seller
provides an opinion
of counsel to the effect that such release would not cause any
REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a
REMIC under
the Code or result in the imposition of any tax on "prohibited
transactions" or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) the
Seller obtains from each Rating Agency then rating the Certificates
and delivers
to the Trustee and the applicable Master Servicer written
confirmation that such
release would not cause the then-current ratings of the
Certificates rated by it
to be qualified, downgraded or withdrawn.
(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 Collection
Account
maintained by the applicable Master Servicer, and the delivery of
the Mortgage
File(s) and the Servicing File(s) for the related Qualified
Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer,
respectively, if
applicable, (i) the Trustee shall execute and deliver such
endorsements and
assignments as are provided to it by the applicable Master Servicer
or the
Seller, 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 replaced Mortgage Loan, as applicable,
(ii) the
Trustee, the applicable 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 applicable 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 replaced
Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the
Certificateholders,
respecting any Document Defect or Breach and the Purchaser
acknowledges and
agrees that the representations and warranties made herein by the
Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
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) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any
judgment, order,
writ, injunction, decree, law or regulation that would, in the
Purchaser's
reasonable and good faith judgment, materially and adversely affect
the ability
of the Purchaser 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 Purchaser of its obligations under this
Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by such Purchaser of, or compliance by such Purchaser
with, this
Agreement or the consummation of the transactions of such
contemplated by this
Agreement, except for any consent, approval, authorization or order
which has
been obtained prior to the actual performance by such Purchaser of
its
obligations under this Agreement, or which, if not obtained would
not have a
materially adverse effect on the ability of such Purchaser to
perform its
obligations hereunder.
(e) 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
11
Purchaser or its properties or have consequences that would
materially and
adversely affect its performance hereunder.
(f) 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 the
consideration
contemplated by this Agreement.
(g) 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.
(h) 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 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 CCMSI, the Seller, the Dealers 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 or its designee shall have delivered and released to
the Trustee (or a Custodian on its behalf) and the applicable
Master Servicer,
respectively, all documents represented to have been or required to
be delivered
to the Trustee and such Master Servicer on or before the Closing
Date 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;
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(e) The Seller shall have paid all fees and expenses payable by it
to
CCMSI or otherwise pursuant to this Agreement as of the Closing
Date; and
(f) Letters from an independent accounting firm reasonably
acceptable
to CCMSI and the Seller in form satisfactory to CCMSI, relating to
certain
information regarding the Mortgage Loans and Certificates as set
forth in the
Prospectus, the Prospectus Supplement and other disclosure
documents.
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, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all
parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated
the
Closing Date, and upon which CCMSI and the Dealers may rely, to the
effect that:
(i) the representations and warranties of the Seller in this
Agreement and the
Indemnification 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, subject, in
the case of the representations and warranties made by the Seller
pursuant to
Section 3(b) of this Agreement, to the exceptions to such
representations and
warranties set forth in Schedule III to this Agreement; 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 the Seller, dated the Closing
Date,
and upon which CCMSI and the Dealers 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) True and complete copies of the articles of association and
by-laws of the Seller (as certified to by the Secretary or an
assistant
secretary of the Seller), and a certificate of corporate existence
of the Seller
issued by the Office of the Comptroller of the Currency not earlier
than thirty
(30) days prior to the Closing Date;
(e) 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 CCMSI, the Trustee, the Certificate Administrator, the
Dealers and
the Rating Agencies, together with such other written opinions as
may be
required by the Rating Agencies;
13
(f) 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; and
(g) A written opinion of counsel for the Purchaser (which opinion
may
be from in-house counsel, outside counsel, or a combination
thereof, and may
include a reliance letter addressed to the Seller with respect to
opinions given
to other parties) relating to certain corporate and enforceability
matters and
reasonably satisfactory to the Seller and its counsel, dated the
Closing Date
and addressed to the Seller.
SECTION 7. 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 Seller
Mortgage Loan
Balance represents
