EXHIBIT 99.1
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as of
December 15, 2004 between CITIGROUP GLOBAL MARKETS REALTY CORP.
(the "Seller")
and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain
multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on
the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The
Purchaser intends to deposit the Mortgage Loans, along with certain
other
mortgage loans (the "Other Mortgage Loans"), into a trust fund (the
"Trust
Fund"), the beneficial ownership of which will be evidenced by
multiple classes
(each, a "Class") of mortgage pass-through certificates (the
"Certificates").
One or more "real estate mortgage investment conduit" ("REMIC")
elections will
be made with respect to most of the Trust Fund. The Trust Fund will
be created
and the Certificates will be issued pursuant to a Pooling and
Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
December 1, 2004,
among the Purchaser, as depositor, Midland Loan Services, Inc., as
master
servicer (the "Master Servicer"), Lennar Partners, Inc., as special
servicer
(the "Special Servicer") and Wells Fargo Bank, N.A., as trustee
(the "Trustee").
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 $912,156,067.26 (the "CGMRC
Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the
close of
business on the Cut-off Date, after giving effect to any payments
due on or
before such date, whether or not such payments are received. The
CGMRC Mortgage
Loan Balance, together with the aggregate principal balance of the
Other
Mortgage Loans as of the Cut-off Date (after giving effect to any
payments due
on or before such date whether or not such payments are received),
is expected
to equal an aggregate principal balance (the "Cut-off Date Pool
Balance") of
$1,030,490,079 (subject to a variance of plus or minus 5.0%). The
purchase and
sale of the Mortgage Loans shall take place on December 22, 2004 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) 105.5644% of
the CGMRC
Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$3,021,686.46, which
amount represents the amount of interest accrued on the CGMRC
Mortgage Loan
Balance at, in the case of the portion thereof attributable to each
Mortgage
Loan, the related Net Mortgage Rate for the period from and
including the
Cut-off Date up to but not including the Closing Date.
The cash component of 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 Wells Fargo Bank, N.A., as trustee for the
registered holders of Citigroup Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2 or in
blank
(or a lost note affidavit and indemnity with a copy of such
Mortgage Note
attached thereto);
(ii) an original or 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;
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(iii) an original or 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 Wells Fargo Bank, N.A., as trustee for
the
registered holders of Citigroup Commercial Mortgage Trust 2004-C2,
Commercial Mortgage Pass-Through Certificates, Series 2004-C2, 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 Wells Fargo Bank, N.A., as trustee for the
registered
holders of Citigroup Commercial Mortgage Trust 2004-C2, Commercial
Mortgage
Pass-Through Certificates, Series 2004-C2, 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 such 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 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 Wells
Fargo
Bank, N.A., as trustee for the registered holders of Citigroup
Commercial
Mortgage Trust 2004-C2, Commercial Mortgage Pass-Through
Certificates,
Series 2004-C2, as assignee, or in blank;
(ix) an original or a copy of (A) any Ground Lease and (B) any loan
guaranty, indemnity, ground lessor estoppel or environmental
insurance
policy or lease enhancement policy;
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(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor; and
(xi) copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan.
(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 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
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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 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
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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 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 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 or the interests of the Certificateholders
therein,
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, (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 Master Servicer for deposit into the Certificate
Account, any
Substitution Shortfall Amount in connection therewith; provided,
however, that,
if 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 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
related Mortgage
Loan or the interests of the Certificateholders therein unless the
document with
respect to which the Document Defect exists is required in
connection with an
imminent
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enforcement of the mortgagee's rights or remedies under the related
Mortgage
Loan, defending any claim asserted by any borrower 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.
(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 all of the remaining
Crossed Loan(s) in
the related Crossed Group as provided in the immediately preceding
paragraph
unless such other Crossed Loans in such Crossed Group satisfy the
Crossed Loan
Repurchase Criteria and satisfy all other criteria for substitution
or
repurchase, as applicable, of Mortgage Loans set forth herein or in
the Pooling
and Servicing Agreement. In the event that the remaining Crossed
Loans satisfy
the aforementioned criteria, the Seller may elect either to
repurchase or
substitute for only the affected Crossed Loan as to which the
related Breach or
Document Defect 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
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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.
(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.
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
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enforcement may be limited by (i) laws relating to bankruptcy,
insolvency,
reorganization, receivership or moratorium, (ii) other laws
relating to or
affecting the rights of creditors generally, or (iii) general
equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity
or at law).
(c) Except as may be required under federal or state securities
laws (and
which will be obtained on a timely basis), no consent, approval,
authorization
or order of, registration or filing with, or notice to, any
governmental
authority or court, is required, under federal or state law, for
the execution,
delivery and performance by the Purchaser of or compliance by the
Purchaser with
this Agreement, or the consummation by the Purchaser of any
transaction
described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the
transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or
performance of this Agreement by the Purchaser, results or will
result in the
creation or imposition of any lien on any of the Purchaser's assets
or property,
or conflicts or will conflict with, results or will result in a
breach of, or
constitutes or will constitute a default under (i) any term or
provision of the
Purchaser's articles of association or bylaws, (ii) any term or
provision of any
material agreement, contract, instrument or indenture, to which the
Purchaser is
a party or by which the Purchaser is bound, or (iii) any law, rule,
regulation,
order, judgment, writ, injunction or decree of any court or
governmental
authority having jurisdiction over the Purchaser or its assets,
which default
might have consequences that would, in the Purchaser's reasonable
and good faith
judgment, materially and adversely affect the condition (financial
or other) or
operations of the Purchaser or its properties or have consequences
that would
materially and adversely affect its performance hereunder.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will
report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for
consideration
consisting of the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending
or to the
knowledge of the Purchaser, threatened against the Purchaser in any
court or by
or before any 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.
9
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) A letter from the independent accounting firm of Ernst &
Young 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
10
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".
11
(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
12
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,
or (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 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 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
13
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 December
6, 2004, as supplemented by the prospectus supplement dated
December 15, 2004
(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 December 6, 2004 relating to the Registered
Certificates,
including all annexes thereto; "Memorandum" shall mean the offering
memorandum
dated December 15, 2004, 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-4, Class A-5, Class A-1A, 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 December 6,
2004 and
December 15, 2004 and rendered by Ernst & Young 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
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
14
parties that are different from or additional to those available to
the
indemnifying party, the indemnified party shall have the right to
select
separate counsel to assert such legal defenses and to otherwise
participate in
the defense of such action on behalf of such indemnified party or
parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its
election so to assume the defense of such action and approval by
the indemnified
party of counsel selected by the indemnifying party, the
indemnifying party will
not be liable for any legal or other expenses subsequently incurred
by such
indemnified party in connection with the defense thereof, unless
(i) the
indemnified party shall have employed separate counsel in
connection with the
assertion of legal defenses in accordance with the proviso to the
preceding
sentence (it being understood, however, that the indemnifying party
shall not be
liable for the expenses of more than one separate counsel, approved
by the
Purchaser and the Underwriters or the Initial Purchasers, as the
case may be,
representing all the indemnified parties under this Section 7 who
are parties to
such action), (ii) the indemnifying party shall not have employed
counsel
reasonably satisfactory to the indemnified party to represent the
indemnified
party within a reasonable time after notice of commencement of the
action or
(iii) the indemnifying party has authorized the employment of
counsel for the
indemnified party at the expense of the indemnifying party; and
except that, if
clause (i) or (iii) is applicable, such liability shall only be in
respect of
the counsel referred to in such clause (i) or (iii). Unless it
shall assume the
defense of any proceeding, an indemnifying party shall not be
liable for any
settlement of any proceeding effected without its written consent
but, if
settled with such consent or if there be a final judgment for the
plaintiff, the
indemnifying party shall indemnify the indemnified party from and
against any
loss or liability by reason of such settlement or judgment.
Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of
counsel or any other expenses for which the indemnifying party is
obligated
under this subsection, the indemnifying party agrees that it shall
be liable for
any settlement of any proceeding effected without its written
consent if (i)
such settlement is entered into more than 45 days after receipt by
such
indemnifying party of the aforesaid request and (ii) such
indemnifying party
shall not have reimbursed the indemnified party in accordance with
such request
prior to the date of such settlement. If an indemnifying party
assumes the
defense of any proceeding, it shall be entitled to settle such
proceedings with
the consent of the indemnified party or, if such settlement
provides for an
unconditional release of the indemnified party in connection with
all matters
relating to the proceedings that have been asserted against the
indemnified
party in such proceeding by the other parties to such settlement,
which release
does not include a statement as to or an admission of fault,
culpability or a
failure to act by or on behalf of any indemnified party without the
consent of
the indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to
an indemnified party under Section 7(a) hereof or insufficient in
respect of any
losses, claims, damages or liabilities referred to therein, then
the
indemnifying party, in lieu of indemnifying such indemnified party,
shall
contribute to the amount paid or payable by such indemnified party
as a result
of such losses, claims, damages or liabilities, in such proportion
as is
appropriate to reflect the relative fault of the indemnified and
indemnifying
parties in connection with the statements or omissions which
resulted in such
losses, claims, damages or liabilities, as well as any other
relevant equitable
considerations, taking into account the parties' relative knowledge
and access
to information concerning the matter with respect to which the
claim was
asserted, the
15
opportunity to correct and prevent any statement or omission or
failure to
comply, and any other equitable considerations appropriate under
the
circumstances. The relative fault of the indemnified and
indemnifying parties
shall be determined by reference to, among other things, whether
the untrue or
alleged untrue statement of a material fact or the omission or
alleged omission
to state a material fact relates to information supplied by such
parties;
provided that no Underwriter or Initial Purchaser shall be
obligated to
contribute more than its share of underwriting discounts and
commissions and
other fees pertaining to the Certificates less any damages
otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss,
liability,
claim, damage or expense. It is hereby acknowledged that the
respective
Underwriters' and Initial Purchasers' obligations under this
Section 7 shall be
several and not joint. For purposes of this Section, each person,
if any, who
controls an Underwriter or an Initial Purchaser within the meaning
of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such
Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to
contribution
as such Underwriter or Initial Purchaser, as the case may be, and
each director
of the Seller and each person, if any who controls the Seller
within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just
and
equitable if contribution pursuant to Section 7(d) were determined
by pro rata
allocation or by any other method of allocation that does not take
account of
the considerations referred to in Section 7(d) above. The amount
paid or payable
by an indemnified party as a result of the losses, claims, damages
and
liabilities referred to in this Section 7 shall be deemed to
include, subject to
the limitations set forth above, any legal or other expenses
reasonably incurred
by such indemnified party in connection with investigating or
defending any such
action or claim, except where the indemnified party is required to
bear such
expenses pursuant to this Section 7, which expenses the
indemnifying party shall
pay as and when incurred, at the request of the indemnified party,
to the extent
that the indemnifying party will be ultimately obligated to pay
such expenses.
If any expenses so paid by the indemnifying party are subsequently
determined to
not be required to be borne by the indemnifying party hereunder,
the party that
received such payment shall promptly refund the amount so paid to
the party
which made such payment. No person guilty of fraudulent
misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7
shall remain operative and in full force and effect regardless of
(i) any
termination of this Agreement, (ii) any investigation made by the
Purchaser, the
Underwriters, the Initial Purchasers, any of their respective
directors or
officers, or any person controlling the Purchaser, the Underwriters
or the
Initial Purchasers, and (iii) acceptance of and payment for any of
the
Certificates.
(g) Without limiting the generality or applicability of any other
provision
of this Agreement, the Underwriters, the Initial Purchasers and
their directors,
officers and controlling parties shall be third-party beneficiaries
of the
provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to
the extent that the Purchaser has paid) the Seller's pro rata
portion of the
aggregate of the
16
following amounts (the Seller's pro rata portion to be determined
according to
the percentage that the CGMRC Mortgage Loan Balance represents as
of the Cut-off
Date Pool Balance): (i) the costs and expenses of printing and
delivering the
Pooling and Servicing Agreement and the Certificates; (ii) the
costs and
expenses of printing (or otherwise reproducing) and delivering a
preliminary and
final Prospectus and Memorandum relating to the Certificates; (iii)
the initial
fees, costs, and expenses of the Trustee (including reasonable
attorneys' fees);
(iv) the filing fee charged by the Securities and Exchange
Commission for
registration of the Certificates so registered; (v) the fees
charged by the
Rating Agencies to rate the Certificates so rated; (vi) the fees
and
disbursements of a firm of certified public accountants selected by
the
Purchaser and the Seller with respect to numerical information in
respect of the
Mortgage Loans and the Certificates included in the Prospectus, the
Memorandum
and any related Computational Materials or ABS Term Sheets,
including in respect
of the cost of obtaining any "comfort letters" with respect to such
items; (vii)
the reasonable out-of-pocket costs and expenses in connection with
the
qualification or exemption of the Certificates under state
securities or "Blue
Sky" laws, including filing fees and reasonable fees and
disbursements of
counsel in connection therewith, in connection with the preparation
of any "Blue
Sky" survey and in connection with any determination of the
eligibility of the
Certificates for investment by institutional investors and the
preparation of
any legal investment survey; (viii) the expenses of printing any
such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees
and
disbursements of counsel to the Underwriters and the Initial
Purchasers;
provided, however, Seller shall pay (or shall reimburse the
Purchaser to the
extent that the Purchaser has paid) the expense of recording any
assignment of
Mortgage or assignment of Assignment of Leases as contemplated by
Section 2
hereof with respect to such Seller's Mortgage Loans. All other
costs and
expenses in connection with the transactions contemplated hereunder
shall be
borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent
of the
parties hereto that the conveyance of the Mortgage Loans by the
Seller to the
Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the
Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or
other
obligation of the Seller. However, if, notwithstanding the
aforementioned intent
of the parties, the Mortgage Loans are held to be property of the
Seller, then,
(a) it is the express intent of the parties that such conveyance be
deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall
also be deemed
to be a security agreement within the meaning of Article 9 of the
Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance
provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to
the Purchaser
of a security interest in all of the Seller's right, title and
interest in and
to the Mortgage Loans, and all amounts payable to the holder of the
Mortgage
Loans in accordance with the terms thereof, and all proceeds of the
conversion,
voluntary or involuntary, of the foregoing into cash, instruments,
securities or
other property, including, without limitation, all amounts, other
than
investment earnings, from time to time held or invested in the
Certificate
Account, the Distribution Account or, if established, the REO
Account (each as
defined in the Pooling and Servicing Agreement) whether in the form
of cash,
instruments, securities or other property; (iii) the assignment to
the Trustee
of the interest of the Purchaser as contemplated by Section 1
hereof shall be
deemed to be an assignment of any security interest created
hereunder; (iv) the
possession by the Trustee or
17
any of its agents, including, without limitation, the Custodian, of
the Mortgage
Notes, and such other items of property as constitute instruments,
money,
negotiable documents or chattel paper shall be deemed to be
possession by the
secured party for purposes of perfecting the security interest
pursuant to
Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and
(v) notifications to persons (other than the Trustee) holding such
property, and
acknowledgments, receipts or confirmations from persons (other than
the Trustee)
holding such property, shall be deemed notifications to, or
acknowledgments,
receipts or confirmations from, financial intermediaries, bailees
or agents (as
applicable) of the secured party for the purpose of perfecting such
security
interest under applicable law. The Seller and the Purchaser shall,
to the extent
consistent with this Agreement, take such actions as may be
necessary to ensure
that, if this Agreement were deemed to create a security interest
in the
Mortgage Loans, such security interest would be deemed to be a
perfected
security interest of first priority under applicable law and will
be maintained
as such throughout the term of this Agreement and the Pooling and
Servicing
Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller
with all forms of Disclosure Materials (including the final form of
the
Memorandum and the preliminary and final forms of the Prospectus
Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and
other communications required hereunder shall be in writing and
telecopied or
delivered to the intended recipient at the "Address for Notices"
specified
beneath its name on the signature pages hereof or, as to either
party, at such
other address as shall be designated by such party in a notice
hereunder to the
other party. Except as otherwise provided in this Agreement, all
such
communications shall be deemed to have been duly given when
transmitted by
telecopier or personally delivered or, in the case of a mailed
notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement,
incorporated herein by reference or contained in the certificates
of officers of
the Seller submitted pursuant hereto, shall remain operative and in
full force
and effect and shall survive delivery of the Mortgage Loans by the
Seller to the
Purchaser (and by the Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is
prohibited or
which is held to be void or unenforceable shall be ineffective to
the extent of
such prohibition or unenforceability without invalidating the
remaining
provisions hereof. Any part, provision, representation, warranty or
covenant of
this Agreement that is prohibited or unenforceable or is held to be
void or
unenforceable in any particular jurisdiction shall, as to such
jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without
invalidating the remaining provisions hereof, and any such
prohibition or
unenforceability in any particular jurisdiction shall not
invalidate or render
unenforceable such provision in any other jurisdiction. To the
extent
18
permitted by applicable law, the parties hereto waive any provision
of law which
prohibits or renders void or unenforceable any provision hereof.
SECTION 14. Counterparts. This Agreement may be executed in any
number of
counterparts, each of which shall be an original, but which
together shall
constitute one and the same agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE
GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 16. Attorneys' Fees. If any legal action, suit or
proceeding is
commenced between the Seller and the Purchaser regarding their
respective rights
and obligations under this Agreement, the prevailing party shall be
entitled to
recover, in addition to damages or other relief, costs and
expenses, attorneys'
fees and court costs (including, without limitation, expert witness
fees). As
used herein, the term "prevailing party" shall mean the party which
obtains the
principal relief it has sought, whether by compromise settlement or
judgment. If
the party which commenced or instituted the action, suit or
proceeding shall
dismiss or discontinue it without the concurrence of the other
party, such other
party shall be deemed the prevailing party.
SECTION 17. Further Assurances. The Seller and the Purchaser agree
to
execute and deliver such instruments and take such further actions
as the other
party may, from time to time, reasonably request in order to
effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of
the
Seller under this Agreement shall not be assigned by the Seller
without the
prior written consent of the Purchaser, except that any person into
which the
Seller may be merged or consolidated, or any corporation resulting
from any
merger, conversion or consolidation to which the Seller is a party,
or any
person succeeding to all or substantially all of the business of
the Seller,
shall be the successor to the Seller hereunder. The Purchaser has
the right to
assign its interest under this Agreement, in whole or in part, as
may be
required to effect the purposes of the Pooling and Servicing
Agreement, and the
assignee shall, to the extent of such assignment, succeed to the
rights and
obligations hereunder of the Purchaser. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser, the Underwriters and the Initial Purchasers (as intended
third party
beneficiaries hereof) and their permitted successors and assigns,
and the
officers, directors and controlling persons referred to in Section
7. This
Agreement is enforceable by the Underwriters, the Initial
Purchasers and the
other third party beneficiaries hereto in all respects to the same
extent as if
they had been signatories hereof.
SECTION 19. Amendments. No term or provision of this Agreement may
be
waived or modified unless such waiver or modification is in writing
and signed
by a duly
19
authorized officer of the party, or third party beneficiary,
against whom such
waiver or modification is sought to be enforced. No amendment to
the Pooling and
Servicing Agreement which relates to defined terms contained
therein, Section
2.01(d) thereof or the repurchase obligations or any other
obligations of the
Seller shall be effective against the Seller (in such capacity)
unless the
Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall
cooperate with
Ernst & Young LLP in making available all information and
taking all steps
reasonably necessary to permit such accountants to deliver the
letters required
by the Underwriting Agreement.
SECTION 21. Knowledge. Whenever a representation or warranty or
other
statement in this Agreement is made with respect to a Person's
"knowledge," such
statement refers to such Person's employees or agents who were or
are
responsible for or involved with the indicated matter and have
actual knowledge
of the matter in question.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
20
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to
be signed hereto by their respective duly authorized officers as of
the date
first above written.
SELLER
CITIGROUP GLOBAL MARKETS REALTY CORP.
By:
/s/ Angela Vleck
---------------------
Name:
Angela Vleck
Title: Authorized Agent
Address for Notices:
388 Greenwich Street
New York, New York 10013
Telecopier No.:
212-816-8307
Telephone No.:
212-816-8087
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
By:
/s/ Angela Vleck
---------------------
Name:
Angela Vleck
Title: Vice President
Address for Notices:
388 Greenwich Street
New York, New York 10013
Telecopier No.:
212-816-8307
Telephone No.:
212-816-8087
SCHEDULE I
----------
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
-----------------------------------------------
1. The information pertaining to each Mortgage Loan set forth in
the
Mortgage Loan Schedule was true and correct in all material
respects as of the
Cut-off Date.
2. As of the date of its origination, such Mortgage Loan complied
in all
material respects with, or was exempt from, all requirements of
federal, state
or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser,
the Seller had good and marketable title to, and was the sole owner
of, each
Mortgage Loan, and the Seller is transferring such Mortgage Loan
free and clear
of any and all liens, pledges, charges or security interests of any
nature
encumbering such Mortgage Loan. Upon consummation of the
transactions
contemplated by the Mortgage Loan Purchase Agreement, the Seller
will have
validly and effectively conveyed to the Purchaser all legal and
beneficial
interest in and to such Mortgage Loan free and clear of any pledge,
lien or
security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except if
such Mortgage Loan is a Mortgage Loan as to which a portion of the
funds
disbursed are being held in escrow or reserve accounts) and there
is no
requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and
other agreement executed in connection with such Mortgage Loan is a
legal, valid
and binding obligation of the related Mortgagor (subject to any
non-recourse
provisions therein and any state anti-deficiency or market value
limit
deficiency legislation), enforceable in accordance with its terms,
except (a)
that certain provisions contained in such Mortgage Loan documents
are or may be
unenforceable in whole or in part under applicable state or federal
laws, but
neither the application of any such laws to any such provision nor
the inclusion
of any such provisions renders any of the Mortgage Loan documents
invalid as a
whole and such Mortgage Loan documents taken as a whole are
enforceable to the
extent necessary and customary for the practical realization of the
rights and
benefits afforded thereby and (b) as such enforcement may be
limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption,
liquidation or other laws affecting the enforcement of creditors'
rights
generally, or by general principles of equity (regardless of
whether such
enforcement is considered in a proceeding in equity or at law). The
related
Mortgage Note and Mortgage contain no provision limiting the right
or ability of
the Seller to assign, transfer and convey the related Mortgage Loan
to any other
Person.
I-1
6. As of the date of its origination, there was no valid offset,
defense,
counterclaim, abatement or right to rescission with respect to any
of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection
therewith, and, as of the Cut-off Date, there is no valid offset,
defense,
counterclaim or right to rescission with respect to such Mortgage
Note,
Mortgage(s) or other agreements, except in each case, with respect
to the
enforceability of any provisions requiring the payment of default
interest, late
fees, additional interest, prepayment premiums or yield maintenance
charges.
7. Each related assignment of Mortgage and assignment of Assignment
of
Leases from the Seller to the Trustee constitutes the legal, valid
and binding
first priority assignment from the Seller, except as such
enforcement may be
limited by bankruptcy, insolvency, redemption, reorganization,
liquidation,
receivership, moratorium or other laws relating to or affecting
creditors'
rights generally or by general principles of equity (regardless of
whether such
enforcement is considered in a proceeding in equity or at law).
Each Mortgage
and Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the
related Mortgaged Property subject only to the exceptions set forth
in paragraph
(5) above and the following title exceptions (each such title
exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a)
the lien of
current real property taxes, ground rents, water charges, sewer
rents and
assessments not yet due and payable, (b) covenants, conditions and
restrictions,
rights of way, easements and other matters of public record, none
of which,
individually or in the aggregate, materially and adversely
interferes with the
current use of the Mortgaged Property or the security intended to
be provided by
such Mortgage or with the Mortgagor's ability to pay its
obligations under the
Mortgage Loan when they become due or materially and adversely
affects the value
of the Mortgaged Property, (c) the exceptions (general and
specific) and
exclusions set forth in the applicable policy described in
paragraph (12) below
or appearing of record, none of which, individually or in the
aggregate,
materially interferes with the current use of the Mortgaged
Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's
ability to pay its obligations under the Mortgage Loan when they
become due or
materially and adversely affects the value of the Mortgaged
Property, (d) other
matters to which like properties are commonly subject, none of
which,
individually or in
