EXHIBIT 99.2
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is
dated as of December 15, 2004 between PNC BANK, NATIONAL
ASSOCIATION (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 $118,334,011.44
(the "PNC
Bank 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 PNC
Bank 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) 103.1559% of
the PNC Bank
Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$365,797.90, which
amount represents the amount of interest accrued on the PNC Bank
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.
The Purchaser hereby directs the Seller to deliver, and the
Seller shall deliver, the Closing Date Deposit (in the amount of
$19,147.67) to
the Master Servicer on the Closing Date. The Closing Date Deposit
shall be
delivered to the account specified by the Master Servicer by wire
transfer of
immediately available funds.
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 and all of the Seller's right,
title and
interest in and to the Closing Date Deposit.
(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);
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(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;
(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
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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;
(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, 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 Sections 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 the
recording, filing
and delivery obligations contemplated above.
(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.
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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 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 national banking association organized
and validly existing and in good standing under the laws of the
United
States of America 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 articles of
association 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
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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 articles of association, bylaws or
any
other corporate restriction or any judgment, order, writ,
injunction,
decree, law or regulation that would, in the Seller's reasonable
and
good faith judgment, materially and adversely affect the ability of
the
Seller to perform its obligations under this Agreement or that
requires
the consent of any third person to the execution of this Agreement
or
the performance by the Seller of its obligations under this
Agreement
(except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the
Seller
with, this Agreement or the consummation of the transactions
contemplated by this Agreement except as have previously been
obtained,
and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the
Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement; and
(viii) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will
report
the transfer of the Mortgage Loans to the Purchaser as a sale of
the
Mortgage Loans to the Purchaser in exchange for consideration
consisting of the Aggregate Purchase Price. The consideration
received
by the Seller upon the sale of the Mortgage Loans to the Purchaser
will
constitute at least reasonably equivalent value and fair
consideration
for the Mortgage Loans. The Seller will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the sale of
the
Mortgage Loans to the Purchaser. The Seller is not selling the
Mortgage
Loans to the Purchaser with any intent to hinder, delay or defraud
any
of the creditors of the Seller.
(b) The Seller hereby makes, on the date hereof and on the
Closing Date, the representations and warranties contained in
Schedule I and
Schedule II hereto with respect to each Mortgage Loan, for the
benefit of the
Purchaser and the Trustee (for the benefit of the
Certificateholders), which
representations and warranties are subject to the exceptions set
forth on
Schedule III.
(c) If the Seller receives written notice of a Document Defect
or a Breach pursuant to Section 2.03(a) of the Pooling and
Servicing Agreement
relating to a Mortgage Loan, then the Seller shall, not later than
90 days 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
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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 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
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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 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
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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
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
9
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.
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;
10
(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 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
11
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".
(e) The articles of association and by-laws of the Seller, and
a certificate of corporate existence issued by the Comptroller of
the Currency
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
12
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
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
13
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
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 (th
