EXHIBIT 99.5
CWCAPITAL MORTGAGE LOAN PURCHASE AGREEMENT
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is
dated
and effective November 29, 2007, between CWCapital Mortgage
Securities I LLC
("CWCMS I") and CWCapital Mortgage Securities VI LLC ("CWCMS VI"
and, together
with CWCMS I, their successors and permitted assigns hereunder,
collectively,
the "Sellers" and each a "Seller"), CWCapital LLC, as an additional
party
("CWCapital" and, together with CWCMS I and CWCMS VI, the
"CWCapital Parties"),
and Deutsche Mortgage & Asset Receiving Corporation, as
purchaser (the
"Purchaser").
Each Seller desires to sell, assign, transfer and otherwise
convey
to the Purchaser, and the Purchaser desires to purchase, subject to
the terms
and conditions set forth below, the commercial, multifamily and
manufactured
housing mortgage loans (collectively, the "Mortgage Loans")
identified on the
schedules annexed hereto as Exhibit A(1) (such Mortgage Loans, the
"CWCMS I
Mortgage Loans") and Exhibit A(2) (such Mortgage Loans, the "CWCMS
VI Mortgage
Loans"; Exhibit A(1) and Exhibit A(2), collectively the "Mortgage
Loan
Schedule"). The phrase "the applicable Mortgage Loans" in respect
of a Seller
refers to, in the case of the CWCMS I Mortgage Loans, CWCMS I, and,
in the case
of the CWCMS VI Mortgage Loans, CWCMS VI, and the phrase "the
applicable Seller"
in respect of a Mortgage Loan refers to, in the case of a CWCMS I
Mortgage Loan,
CWCMS I, and, in the case of a CWCMS VI Mortgage Loan, CWCMS
VI.
It is expected that the Mortgage Loans will be transferred,
together
with other commercial, multifamily and manufactured housing
mortgage loans (such
mortgage loans, the "Other Mortgage Loans") to CD 2007-CD5 Mortgage
Trust, a
trust fund (the "Trust Fund") to be formed by the Purchaser, the
beneficial
ownership of which will be evidenced by a series of mortgage
pass-through
certificates (the "Certificates"). Certain classes of the
Certificates will be
rated by Moody's Investors Service, Inc., and Standard and Poor's
Rating
Services, a division of The McGraw Hill Companies, Inc. (together,
the "Rating
Agencies"). Certain classes of the Certificates (the "Registered
Certificates")
will be registered under the Securities Act of 1933, as amended
(the "Securities
Act"). The Trust Fund will be created and the Certificates will be
issued
pursuant to a pooling and servicing agreement to be dated as of
November 1, 2007
(the "Pooling and Servicing Agreement"), among the Purchaser, as
depositor,
Capmark Finance Inc., as the master servicer with respect to the
Mortgage Loans
sold to the trust by Citigroup Global Markets Realty Corp., the
Sellers and
SunTrust Bank (other than the Charles River Plaza North Mortgage
Loan) (the
"Capmark Master Servicer"), Wachovia Bank, National Association, as
the master
servicer with respect to the Mortgage Loans sold to the trust by
German American
Capital Corporation and Artesia Mortgage Capital Corporation (other
than the
USFS Industrial Distribution Portfolio Mortgage Loan, the 85 Tenth
Avenue
Mortgage Loan and the Georgian Towers Mortgage Loan), LNR Partners,
Inc., as
special servicer with respect to all of the Mortgage Loans other
than the
Non-Serviced Mortgage Loans (as defined in the Pooling and
Servicing Agreement)
(the "Special Servicer"), Deutsche Bank Trust Company Americas, as
certificate
administrator and paying agent (in its capacity as certificate
administrator,
the "Certificate Administrator"), and Wells Fargo Bank, N.A., as
trustee and
custodian (in its capacity as trustee, the "Trustee").
The Purchaser intends to sell certain of the Certificates to
Deutsche Bank Securities Inc. ("DBS"), Citigroup Global Markets
Inc. ("CGM"),
Credit Suisse Securities (USA) LLC ("CS") and SunTrust Robinson
Humphrey, Inc.
("SRH," and together with DBS, CGM and CS, the "Underwriters")
pursuant to an
underwriting agreement dated November 21, 2007 (the "Underwriting
Agreement").
The Purchaser intends to sell certain other Certificates (the "Non
Registered
Certificates") pursuant to a certificate purchase agreement dated
November 21,
2007 (the "Certificate Purchase Agreement") to DBS and CGM
(collectively in such
capacity, the "Initial Purchasers"). Capitalized terms not
otherwise defined
herein have the meanings assigned to them in the Pooling and
Servicing Agreement
(as of the Closing Date) or in the Indemnification Agreement which
was entered
into by CWCapital, the Purchaser and the Underwriters on November
20, 2007 (the
"CWCapital Indemnification 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.
Subject to the terms and conditions set forth in this
Agreement,
each Seller agrees to sell, assign, transfer and otherwise convey
to the
Purchaser upon receipt of the Mortgage Loan Purchase Price referred
to in this
Section 1 the applicable Mortgage Loans, and the Purchaser agrees
to purchase
such Mortgage Loans. The purchase and sale of the Mortgage Loans
shall take
place on November 29, 2007 or such other date as shall be mutually
acceptable to
the parties hereto (the "Closing Date"). As of the related Due Date
in November
2007 (the "Cut-off Date"), the Mortgage Loans will have an
aggregate principal
balance (the "Aggregate Cut-off Date Balance"), after application
of all
payments of principal due thereon on or before the Cut-off Date,
whether or not
received, of $114,154,049, subject to a variance of plus or minus
5.0%. The
purchase price of the Mortgage Loans (inclusive of accrued interest
and
exclusive of the Seller's pro rata share of the costs set forth in
Section 9
hereof) (the "Mortgage Loan Purchase Price") shall be equal to the
amount set
forth on the cross receipt between the Sellers and the Purchaser
dated the date
hereof.
SECTION 2. Conveyance of Mortgage Loans.
(a) On the Closing Date, subject only to receipt by the
CWCapital
Parties of the Mortgage Loan Purchase Price, the satisfaction of
the other
closing conditions required to be satisfied on the part of
Purchaser pursuant to
Section 7 and the issuance of the Certificates, each Seller agrees
to (i) sell,
transfer, assign, set over and otherwise convey to the Purchaser,
without
recourse, all the right, title and interest of such Seller in and
to the
applicable Mortgage Loans identified on the Mortgage Loan Schedule,
including
all rights to payment in respect thereof, which includes all
interest and
principal received or receivable by such Seller on or with respect
to such
Mortgage Loans after the Cut-off Date (subject to the proviso in
the next
sentence), together with all of such Seller's right, title and
interest in and
to the proceeds of any related title, hazard, or other insurance
policies and
any escrow, reserve or other comparable accounts related to the
Mortgage Loans,
subject to that certain Servicing Rights Purchase and Sale
Agreement dated as of
November 29, 2007 between the Capmark Master Servicer and the
Seller; provided,
however, to the extent a CWCapital Party has the right in respect
of a Mortgage
Loan (as opposed to the related Borrower), pursuant to the related
Mortgage Loan
documents, to establish or designate the successor Borrower with
respect to a
defeasance and to purchase or cause to be purchased the related
defeasance
collateral, such right is retained by such CWCapital Party and not
transferred
to the Purchaser hereby. The Purchaser shall be entitled to (and,
to the extent
received by or on behalf of a Seller, such Seller shall deliver or
cause to be
delivered to or at the direction of the Purchaser) all scheduled
payments of
principal and interest due on the Mortgage Loans after the Cut-off
Date, and all
other recoveries of principal and interest collected thereon after
the Cut-off
Date; provided, however, that all scheduled payments of principal
and interest
accrued but not paid thereon, due on or before the Cut-off Date and
collected
after the Cut-off Date shall belong to the applicable Seller, and
the Purchaser
or its successors or assigns shall promptly remit any such payments
to such
Seller.
Each Seller shall (i) on or prior to the Closing Date, retain a
third party vendor reasonably satisfactory to the Controlling
Class
Representative (which may be the Custodian) to complete the
assignment and
recordation of the related Loan Documents, as contemplated by the
fourth
paragraph of Section 2.01(a) of the Pooling and Servicing Agreement
and (ii)
take all actions reasonably necessary to perform its obligations
described in
the fourth paragraph of Section 2.01(a) of the Pooling and
Servicing Agreement.
(b) In connection with each Seller's assignment pursuant to
subsection (a) above, each Seller shall deliver to and deposit
with, or cause to
be delivered to and deposited with, the Custodian, on or before the
Closing
Date, the documents and/or instruments referred to in clauses (i),
(ii), (vii),
(xi) and (xvii) of Exhibit B for each applicable Mortgage Loan so
assigned (with
originals with respect to clauses (i) and (xvii) and copies with
respect to
clauses (ii), (vii) and (xi)) and, within 30 days following the
Closing Date,
the remaining applicable documents in Exhibit B for each such
Mortgage Loan with
copies to the Capmark Master Servicer.
(c) If a Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, such original Note, such Seller shall deliver a copy
or duplicate
original of such Note, together with an affidavit certifying that
the original
thereof has been lost or destroyed and an indemnification in
connection
therewith in favor of the Trustee.
(d) If a Seller cannot deliver, or cause to be delivered, as to
any
Mortgage Loan, the original or a copy of any of the documents
and/or instruments
referred to in clauses (ii), (iv)(A), (v)(A), (viii)(A), (xiv) and
(xvi) of
Exhibit B and the UCC financing statements and UCC assignments of
financing
statements referred to in clause (xiii) of Exhibit B, with evidence
of recording
or filing thereon, solely because of a delay caused by the public
recording or
filing office where such document or instrument has been delivered
for
recordation or filing, or because such original recorded or filed
document has
been lost or returned from the recording or filing office and
subsequently lost,
as the case may be, the delivery requirements of Section 2(b) shall
be deemed to
have been satisfied as to such missing item, and such missing item
shall be
deemed to have been included in the related Mortgage File, provided
that a copy
of such document or instrument (without evidence of recording or
filing thereon,
but certified (which certificate may relate to multiple documents
and/or
instruments) by the applicable public recording or filing office,
the applicable
title insurance company or by the applicable Seller to be a true
and complete
copy of the original thereof submitted for recording or filing, as
the case may
be) has been delivered to the Trustee within 45 days after the
Closing Date, and
either the original of such missing document or instrument, or a
copy thereof,
with evidence of recording or filing, as the case may be, thereon,
is delivered
to or at the direction of the Purchaser (or any subsequent owner of
the affected
Mortgage Loan, including without limitation the Trustee) within 180
days after
the Closing Date (or within such longer period after the Closing
Date as the
Purchaser (or such subsequent owner) may consent to, which consent
shall not be
unreasonably withheld so long as the applicable Seller has provided
the
Purchaser (or such subsequent owner) with evidence of such
recording or filing,
as the case may be, or has certified to the Purchaser (or such
subsequent owner)
as to the occurrence of such recording or filing, as the case may
be, and is, as
certified to the Purchaser (or such subsequent owner) no less often
than
quarterly, in good faith attempting to obtain from the appropriate
public
recording or filing office such original or copy).
If a Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title
insurance
policy referred to in clause (vii) of Exhibit B solely because such
policy has
not yet been issued, the delivery requirements of Section 2(b)
shall be deemed
to be satisfied as to such missing item, and such missing item
shall be deemed
to have been included in the related Mortgage File, provided that
such Seller
has delivered to the Trustee a binder marked as binding and
countersigned by the
title insurer or its authorized agent (which may be a pro forma or
specimen
title insurance policy which has been accepted or approved in
writing as binding
by the related title insurance company) or an acknowledged closing
instruction
or escrow letter, and such Seller shall deliver to or at the
direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan,
including
without limitation the Trustee), promptly following the receipt
thereof, the
original related lender's title insurance policy (or a copy
thereof). In
addition, notwithstanding anything to the contrary contained
herein, if there
exists with respect to any group of related cross-collateralized
Mortgage Loans
only one original of any document referred to in Exhibit B covering
all the
Mortgage Loans in such group, then the inclusion of the original of
such
document in the Mortgage File for any of the Mortgage Loans in such
group shall
be deemed an inclusion of such original in the Mortgage File for
each such
Mortgage Loan. On the Closing Date, upon (i) notification from each
Seller that
the purchase price referred to in Section 1 has been received by
such Seller and
(ii) the issuance of the Certificates, the Purchaser shall be
authorized to
release to the Trustee or its designee all of the Mortgage Files in
the
Purchaser's possession relating to the Mortgage Loans.
Notwithstanding anything herein to the contrary, with respect to
the
documents referred to in clause (xvii) and clause (xviii) on
Exhibit B, the
Capmark Master Servicer shall hold the original of each such
document in trust
on behalf of the Trustee in order to draw on such letter of credit
on behalf of
the Trust, and the applicable Seller shall be deemed to have
satisfied the
delivery requirements of this Agreement by delivering the original
of each such
document to the Capmark Master Servicer. The Seller shall pay any
costs of
assignment or amendment of such letter of credit required (which
assignment or
amendment shall change the beneficiary of the letter of credit to
the Trust in
care of the Capmark Master Servicer) in order for the Capmark
Master Servicer to
draw on such letter of credit on behalf of the Trust. In the event
that the
documents specified in clause (xviii) on Exhibit B are missing
because the
related assignment or amendment documents have not been completed,
the
applicable Seller shall take all reasonably necessary steps to
enable the
Capmark Master Servicer to draw on the related letter of credit on
behalf of the
Trust including, if necessary, drawing on the letter of credit in
its own name
pursuant to written instructions from the Capmark Master Servicer
and
immediately remitting such funds (or causing such funds to be
remitted) to the
Capmark Master Servicer.
Contemporaneously with the execution of this Agreement by the
Purchaser and the Sellers, each Seller shall deliver a power of
attorney to each
of the Capmark Master Servicer and the Special Servicer at the
direction of the
Controlling Class Representative or its assignees, to take such
other action as
is necessary to effect the delivery, assignment and/or recordation
of any
documents and/or instruments relating to any Mortgage Loan which
have not been
delivered, assigned or recorded at the time required for
enforcement by the
Trust Fund. Each Seller will be required to effect at its expense
the assignment
and recordation of its Loan Documents until the assignment and
recordation of
all such Loan Documents has been completed.
(e) As to each Mortgage Loan, the applicable Seller shall be
responsible for all costs associated with the recording or filing,
as the case
may be, of each assignment referred to in clauses (iii) and
(viii)(B) of Exhibit
B and each UCC-2 and UCC-3 assignment of financing statement, if
any, referred
to in clause (v)(B) of Exhibit B. If any such document or
instrument is lost or
returned unrecorded or unfiled, as the case may be, because of a
defect therein,
the applicable Seller shall promptly prepare or cause the
preparation of a
substitute therefor or cure or cause the curing of such defect, as
the case may
be, and shall thereafter deliver the substitute or corrected
document to or at
the direction of the Purchaser (or any subsequent owner of the
affected Mortgage
Loan, including without limitation the Trustee) for recording or
filing, as
appropriate, at such Seller's expense.
(f) Except as provided below, all documents and records in each
Seller's possession (or under its control) relating to the
applicable Mortgage
Loans that are not required to be a part of a Mortgage File in
accordance with
Exhibit B but that are reasonably required to service such Mortgage
Loans (all
such other documents and records, including Environmental Reports,
as to any
Mortgage Loan, the "Servicing File"), together with all escrow
payments, reserve
funds and other comparable funds in the possession of such Seller
(or under its
control) with respect to the Mortgage Loans, shall (unless they are
held by a
sub-servicer that shall, as of the Closing Date, begin acting on
behalf of the
Capmark Master Servicer pursuant to a written agreement between
such parties) be
delivered by such Seller (or its agent) to the Purchaser (or its
designee) no
later than the Closing Date; provided, however, the applicable
Seller shall not
be required to deliver, and the Servicing File shall not be deemed
to include
drafts of Loan Documents, attorney-client or internal
communications of such
Seller or its affiliates or Seller's credit underwriting or due
diligence
analyses or related data (as distinguished from Environmental
Reports, financial
statements, credit reports, title reports, structural and
engineering reports,
appraisals and other reports, analyses or data provided by the
Borrowers or
third parties other than such Seller's attorneys). If a
sub-servicer shall, as
of the Closing Date, begin acting on behalf of the Capmark Master
Servicer with
respect to any Mortgage Loan pursuant to a written agreement
between such
parties, the applicable Seller or its agent shall deliver a copy of
the related
Servicing File to the Capmark Master Servicer.
(g) Each of the Seller's and the Purchaser's records will
reflect
the transfer of the Mortgage Loans to the Purchaser as a sale,
including for
accounting purposes. Following the transfer of the Mortgage Loans
to the
Purchaser, each Seller will not take any action inconsistent with
the ownership
of the Mortgage Loans by the Purchaser or its assignees.
(h) Furthermore, it is the express intent of the parties hereto
that
the conveyance of the applicable Mortgage Loans by each Seller to
the Purchaser
as provided in this Agreement be, and be construed as, a sale of
such Mortgage
Loans by such Seller to Purchaser and not a pledge of such Mortgage
Loans by
such Seller to Purchaser to secure a debt or other obligation of
such Seller.
However, in the event that, notwithstanding the intent of the
parties, such
Mortgage Loans are held to be property of such Seller or if for any
reason this
Agreement is held or deemed to create a security interest in such
Mortgage
Loans:
(i) this Agreement shall hereby create a security agreement
within
the
meaning of Articles 8 and 9 of the Uniform Commercial Code in
effect
in the
applicable state;
(ii) the conveyance provided for in this Agreement shall hereby
grant from
the applicable Seller to Purchaser a security interest in and
to all of
such Seller's right, title, and interest, whether now owned or
hereafter
acquired, in and to:
(A) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents,
money,
deposit accounts, certificates of deposit, goods, letters of
credit,
advices of credit and investment property consisting of,
arising
from or relating to any of the property described in the
applicable
Mortgage Loans, including the related Notes, Mortgages and
title,
hazard and other insurance policies, identified on the Mortgage
Loan
Schedule, and all distributions with respect thereto payable
after
the Cut-off Date;
(B) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of
credit
and investment property arising from or by virtue of the
disposition
of, or collections with respect to, or insurance proceeds
payable
with respect to, or claims against other persons with respect
to,
all or any part of the collateral described in clause (A) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after
the
Cut-off Date; and
(C) all cash and non-cash proceeds of the collateral described
in clauses (A) and (B) above payable after the Cut-off Date;
(iii) the possession by Purchaser or its assignee of the Notes
and
such other
goods, letters of credit, advices of credit, instruments,
money,
documents, chattel paper or certificated securities shall be
deemed
to be
possession by the secured party or possession by a purchaser or
a
person
designated by him or her, for purposes of perfecting the
security
interest
pursuant to the Uniform Commercial Code (including, without
limitation, Sections 9-306, 9-313 and 9-314 thereof) as in force in
the
relevant
jurisdiction; and
(iv) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding
such
property,
shall be deemed to be notifications to, or acknowledgments,
receipts
or confirmations from, securities intermediaries, bailees or
agents of,
or persons holding for (as applicable), Purchaser or its
assignee
for the purpose of perfecting such security interest under
applicable
law.
Each Seller at the direction of the Purchaser or its assignee,
shall, to the extent consistent with this Agreement, take such
actions as may be
reasonably necessary to ensure that, if this Agreement were deemed
to create a
security interest in the Mortgage Loans and the proceeds thereof,
such security
interest would be a perfected security interest of first priority
under
applicable law and will be maintained as such throughout the term
of this
Agreement. In connection herewith, Purchaser and its assignee shall
have all of
the rights and remedies of a secured party and creditor under the
Uniform
Commercial Code as in force in the relevant jurisdiction and may
execute and
file such UCC Financing Statements as may be reasonably necessary
or appropriate
to accomplish the foregoing.
(i) It is further acknowledged and agreed by each Seller that
the
Purchaser intends to convey all right, title and interest of the
Purchaser in
and to the Mortgage Loans and all rights and remedies under this
Agreement
(excluding the Purchaser's rights and remedies under Section 9
below and the
CWCapital Indemnification Agreement) to the Trustee on behalf of
the
Certificateholders, including, without limitation, all rights and
remedies as
may be available under Section 6 to the Purchaser in the event of a
Material
Breach or a Material Defect; provided, that the Trustee on behalf
of the
Certificateholders shall be a third-party beneficiary of this
Agreement and
shall be entitled to enforce any obligations of the Seller
hereunder in
connection with a Material Breach or a Material Defect as if the
Trustee on
behalf of the Certificateholders had been an original party to this
Agreement.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
Each Seller shall reasonably cooperate with any examination of
the
Mortgage Files and Servicing Files that may be undertaken by or on
behalf of the
Purchaser. The fact that the Purchaser has conducted or has failed
to conduct
any partial or complete examination of the Mortgage Files and/or
Servicing Files
shall not affect the Purchaser's right to pursue any remedy
available in equity
or at law under Section 6 for a breach of the Seller's
representations,
warranties and covenants set forth in or contemplated by Section
4.
SECTION 4. Representations, Warranties and Covenants of the
Seller.
(a) Each CWCapital Party hereby makes, as of the date hereof (or
as
of such other date specifically provided in the particular
representation or
warranty), to and for the benefit of the Purchaser, the Trustee on
behalf of the
Certificateholders and the respective successors-in-interest of the
Purchaser
and the Trustee, each of the representations and warranties set
forth in Exhibit
C with respect to each Mortgage Loan, subject to the exceptions set
forth in
Schedule C-1 to Exhibit C, provided that each reference to the
"Seller"
contained on Exhibit C shall be deemed to refer to the applicable
Seller and
each reference to a "Mortgage Loan" contained on Exhibit C shall be
deemed to
refer to the Mortgage Loan(s) being transferred by such Seller.
(b) In addition, each CWCapital Party, as of the date hereof,
hereby
represents and warrants to, and covenants (only as to itself and to
the extent
specified below) with, the Purchaser that:
(i) (A) CWCapital is a limited liability company, duly
organized,
validly
existing and in good standing under the laws of the
Commonwealth
of
Massachusetts, (B) each of CWCMS I and CWCMS VI is a limited
liability
company
duly organized, validly existing and in good standing under the
laws of
the State of Delaware, and (C) each of the CWCapital Parties is
in
compliance
with the laws of each State in which any Mortgaged Property is
located to
the extent necessary to ensure the enforceability of each
Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by it, and
the
performance of, and compliance with, the terms of this Agreement by
it, do
not
violate its organizational documents or constitute a default (or
an
event
which, with notice or lapse of time, or both, would constitute
a
default)
under, or result in the breach of, any material agreement or
other
instrument to which it is a party or which is applicable to it
or
any of its
assets, in each case which materially and adversely affects its
ability to
carry out the transactions contemplated by this Agreement.
(iii) It has the full power and authority to enter into and
consummate
all transactions contemplated by this Agreement, has duly
authorized
the execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by the Purchaser, constitutes a valid, legal and binding
obligation
of it, enforceable against it in accordance with the terms
hereof,
subject to (A) applicable bankruptcy, insolvency,
reorganization,
receivership, moratorium and other laws affecting the enforcement
of
creditors'
rights generally, (B) general principles of equity, regardless
of whether
such enforcement is considered in a proceeding in equity or at
law, and
(C) public policy considerations underlying the securities
laws,
to the
extent that such public policy considerations limit the
enforceability of the provisions of this Agreement that purport to
provide
indemnification or contribution for securities laws
liabilities.
(v) It is not in violation of, and its execution and delivery
of
this
Agreement and its performance of, and compliance with, the terms
of
this
Agreement do not constitute a violation of, any law, any
judgment,
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in its good faith and reasonable judgment, is
likely to
affect materially and adversely either its ability to perform
its
obligations under this Agreement or its financial condition.
(vi) No litigation is pending or, to the best of its knowledge,
threatened
against it the outcome of which, in its good faith and
reasonable
judgment, is likely to materially and adversely affect its
ability to
perform its obligations under this Agreement or its financial
condition
of the Seller.
(vii) It has not dealt with any broker, investment banker, agent
or
other
person, other than the Purchaser, the Underwriters, the Initial
Purchasers, and their respective affiliates, that may be entitled
to any
commission
or compensation in connection with the sale of the Mortgage
Loans or
the consummation of any of the other transactions contemplated
hereby.
(viii) Insofar as it relates to the Mortgage Loans, the
information
set forth
in Annex A-1 and Annex A-2 to the Prospectus Supplement (as
defined in
the CWCapital Indemnification Agreement) (the "Loan Detail")
and, to
the extent consistent therewith, the information set forth on
the
diskette
attached to the Prospectus Supplement and the accompanying
prospectus
(the "Diskette"), is true and correct in all material respects.
Insofar as
it relates to the description of the Mortgage Loans and/or the
Seller and
does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Time of
Sale
Information (as defined in the CWCapital Indemnification
Agreement),
the
Memorandum (as defined in the CWCapital Indemnification
Agreement)
(insofar
as the Prospectus Supplement is an exhibit thereto) and in the
Prospectus
Supplement under the headings "Summary of the Prospectus
Supplement--Relevant Parties and Dates--Mortgage Loan Sellers,"
"--Originators," "--The Mortgage Pool," "Risk Factors--Risks
Related to
the
Mortgage Loans," "Transaction Parties--Mortgage Loan Sellers
(Other
Than the
Sponsors)" and "Description of the Mortgage Pool" and the
information set forth on Annex A-1 and Annex A-2 and Annex B to
the
Prospectus
Supplement, and to the extent it contains information
consistent
with that on such Annex A-1 and Annex A-2 set forth on the
Diskette,
does not (or, in the case of the Time of Sale Information, did
not as of
the Time of Sale (as defined in the CWCapital Indemnification
Agreement)) contain any untrue statement of a material fact or (in
the
case of
the Memorandum, when read together with the other information
specified
therein as being available for review by investors) omit to
state any
material fact necessary to make the statements therein, in
light
of the
circumstances under which they were made, not misleading.
(ix) 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 (including, with respect to any bulk
sale
laws), for the execution, delivery and performance of, or
compliance
by, it
with this Agreement, or the consummation by it of any
transaction
contemplated hereby, other than (1) with respect to each Seller
only, the
filing or
recording of financing statements, instruments of assignment
and
other
similar documents necessary in connection with its sale of the
Mortgage
Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices
as have
been
obtained, made or given and (3) where the lack of such consent,
approval,
authorization, qualification, registration, filing or notice
would not
have a material adverse effect on the performance by it under
this
Agreement.
(c) Upon discovery by any of the CWCapital Parties or the parties
to
the Pooling and Servicing Agreement of a breach of any of the
representations
and warranties made pursuant to and set forth in subsection (b)
above which
materially and adversely affects the interests of the Purchaser or
a breach of
any of the representations and warranties made pursuant to
subsection (a) above
and set forth in Exhibit C which materially and adversely affects
the value of
any Mortgage Loan, the value of the related Mortgaged Property or
the interests
therein of the Purchaser, the Trustee on behalf of the
Certificateholders or any
Certificateholder, the party discovering such breach shall give
prompt written
notice to CWCapital and/or the other parties, as applicable.
SECTION 5. Representations, Warranties and Covenants of the
Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the CWCapital Parties that:
(i) The Purchaser is a corporation duly organized, validly
existing
and in
good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser,
and the
performance of, and compliance with, the terms of this
Agreement
by the
Purchaser, do not violate the Purchaser's organizational
documents
or
constitute a default (or an event which, with notice or lapse of
time,
or both,
would constitute a default) under, or result in the breach of,
any
material agreement or other instrument to which it is a party or
which
is
applicable to it or any of its assets.
(iii) The Purchaser has the full power and authority to enter
into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized
the execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(iv)
This Agreement, assuming due authorization, execution and
delivery
by the CWCapital Parties, constitutes a valid, legal and
binding
obligation
of the Purchaser, enforceable against the Purchaser in
accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws
affecting
the enforcement of creditors' rights generally, and (B) general
principles
of equity, regardless of whether such enforcement is considered
in a
proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery
of this Agreement and its performance of, and compliance with,
the terms
of this Agreement will not constitute a violation of, any law,
any
judgment, order or decree of any court or arbiter, or any
order,
regulation
or demand of any federal, state or local governmental or
regulatory
authority, which violation, in the Purchaser's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the
ability of the Purchaser to perform its obligations under this
Agreement
or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the
Purchaser's
knowledge,
threatened against the Purchaser which would prohibit the
Purchaser
from entering into this Agreement or, in the Purchaser's good
faith and
reasonable judgment, is likely to materially and adversely
affect
either the ability of the Purchaser to perform its obligations
under this
Agreement or the financial condition of the Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker,
agent or other person, other than the Seller, the Underwriters,
the
Initial Purchasers and their respective affiliates, that may be
entitled
to any commission or compensation in connection with the sale
of
the
Mortgage Loans or the consummation of any of the transactions
contemplated hereby.
(viii) 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 Purchaser's execution,
delivery
and performance of or compliance by the Purchaser with this
Agreement,
or the consummation by the Purchaser of any transaction
contemplated hereby, other than (1) such consents, approvals,
authorizations, qualifications, registrations, filings or notices
as have
been
obtained, made or given and (2) where the lack of such consent,
approval,
authorization, qualification, registration, filing or notice
would not
have a material adverse effect on the performance by the
Purchaser
under this Agreement.
(b) Upon discovery by any of the parties hereto of a breach of
any
of the representations and warranties set forth above which
materially and
adversely affects the interests of any CWCapital Party, the party
discovering
such breach shall give prompt written notice to the other party
hereto.
SECTION 6. Repurchases; Substitutions.
(a) If any party to this Agreement discovers that any document
constituting a part of a Mortgage File has not been delivered
within the time
periods provided for herein, has not been properly executed, is
missing, does
not appear to be regular on its face or contains information that
does not
conform in any material respect with the corresponding information
set forth in
the Mortgage Loan Schedule (each, a "Defect"), or discovers or
receives notice
of a breach of any representation or warranty of any CWCapital
Party made
pursuant to Section 4(a) of this Agreement with respect to any
Mortgage Loan (a
"Breach"), such party shall give prompt written notice thereof to
each of the
Rating Agencies, CWCapital, the parties to the Pooling and
Servicing Agreement
and the Controlling Class Representative. If any such Defect or
Breach
materially and adversely affects the value of any Mortgage Loan,
the value of
the related Mortgaged Property or the interests therein of the
Purchaser, the
Trustee or any Certificateholders, then such Defect shall
constitute a "Material
Defect" or such Breach shall constitute a "Material Breach," as the
case may be;
provided, however, that if any of the documents specified in
clauses (i), (ii),
(vii), (xi) and (xvii) of the definition of "Mortgage File" is not
delivered,
and is certified as missing, pursuant to the first paragraph of
Section 2.01(b)
of the Pooling and Servicing Agreement, it shall be deemed a
Material Defect.
Promptly upon receiving written notice of any such Material Defect
or Material
Breach with respect to a Mortgage Loan (including through a written
notice given
by any party hereto, as provided above), CWCapital shall, not later
than 90 days
from CWCapital's receipt of notice from the Capmark Master
Servicer, the Special
Servicer, the Trustee or the Custodian of such Material Defect or
Material
Breach, as the case may be (or, in the case of a Material Defect or
Material
Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the
meaning of the REMIC Provisions, not later than 90 days after
CWCapital or any
party to the Pooling and Servicing Agreement discovering such
Material Defect or
Material Breach) (any such 90-day period, the "Initial Resolution
Period"), (i)
cure the same in all material respects, (ii) repurchase the
affected Mortgage
Loan at the applicable Repurchase Price or (iii) substitute a
Qualifying
Substitute Mortgage Loan for such affected Mortgage Loan (provided
that in no
event shall such substitution occur later than the second
anniversary of the
Closing Date) and pay to the Capmark Master Servicer for deposit
into the
Collection Account any Substitution Shortfall Amount in connection
therewith;
provided, however, that with respect to any Material Defect arising
from a
missing document as to which the Trustee closing date certification
stated the
Trustee was not in possession of such document on the Closing Date
pursuant to
the first sentence of the second paragraph of Section 2.02 of the
Pooling and
Servicing Agreement, CWCapital shall have 30 days to cure such
Material Defect;
provided, further, that with respect to any Material Defect arising
from a
missing document as to which the Trustee inadvertently certified
its possession
of such document (x) as of the Closing Date, in the form of Exhibit
T-1 to the
Pooling and Servicing Agreement or (y) no later than 45 days
following the
Closing Date, in the form of Exhibit T-2 to the Pooling and
Servicing Agreement,
CWCapital shall have 30 days to cure the Material Defect relating
to the missing
document; provided, further, that if (i) such Material Defect or
Material Breach
(other than one relating to the immediately preceding proviso) is
capable of
being cured but not within the Initial Resolution Period, (ii) such
Material
Defect or Material Breach is not related to any Mortgage Loan's not
being a
"qualified mortgage" within the meaning of the REMIC Provisions and
(iii)
CWCapital has commenced and is diligently proceeding with the cure
of such
Material Defect or Material Breach within the Initial Resolution
Period, then
CWCapital shall have an additional period equal to the applicable
Resolution
Extension Period to complete such cure or, failing such cure, to
repurchase the
Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan.
CWCapital
shall have an additional 90 days (without duplication of the
additional 90-day
period set forth in the last sentence of the definition of
Resolution Extension
Period) to cure such Material Defect or Material Beach, provided
that, CWCapital
has commenced and is diligently proceeding with the cure of such
Material Defect
or Material Breach and such failure to cure is solely the result of
a delay in
the return of documents from the local filing or recording
authorities.
Notwithstanding the foregoing, if a Mortgage Loan is not secured by
a hotel,
restaurant (operated by a Borrower), healthcare facility, nursing
home, assisted
living facility, self-storage facility, theatre, manufactured
housing or fitness
center (operated by a Borrower) property, then the failure to
deliver to the
Trustee copies of the UCC financing statements with respect to such
Mortgage
Loan shall not be a Material Defect.
If CWCapital is notified of a Defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule,
CWCapital
shall promptly correct such Defect and provide a new, corrected
Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule
shall be
deemed to amend and replace the existing Mortgage Loan Schedule for
all
purposes. The failure of the Capmark Master Servicer, the Special
Servicer or
the Trustee to notify CWCapital of a Material Defect or Material
Breach shall
not constitute a waiver of any cure or repurchase obligation,
provided that
CWCapital must receive written notice thereof as described in this
Section 6(a)
before commencement of the Initial Resolution Period.
Notwithstanding the foregoing, if (x) there exists a Breach of
any
representation or warranty on the part of CWCapital and/or a Seller
as set forth
in, or made pursuant to, clause 38 of Exhibit C to this Agreement
relating to
fees and expenses payable by the Borrower associated with the
exercise of a
defeasance option, a waiver of a "due-on-sale" provision or a
"due-on-encumbrance" provision or the release of any Mortgaged
Property, and (y)
the related Mortgage Loan documents specifically prohibit the
Capmark Master
Servicer or Special Servicer from requiring the related Borrower to
pay such
fees and expenses, then, upon notice by the Capmark Master Servicer
or Special
Servicer, CWCapital shall transfer to the Collection Account,
within 90 days of
CWCapital's receipt of such notice, the amount of any such fees and
expenses
borne by the Trust Fund that are the basis of such Breach. Upon its
making such
deposit, CWCapital shall be deemed to have cured such Breach in all
respects.
Provided such payment is made, this paragraph describes the sole
remedy
available to the Purchaser and its assignees regarding any such
Breach,
regardless of whether it constitutes a Material Breach, and
CWCapital shall not
be obligated to repurchase or otherwise cure such Breach.
(b) In connection with any repurchase of, or substitution for,
a
Mortgage Loan contemplated by this Section 6, (A) the Trustee, the
Capmark
Master Servicer (with respect to any such Mortgage Loan other than
a Specially
Serviced Loan) and the Special Servicer (with respect to any such
Mortgage Loan
that is a Specially Serviced Loan) shall each tender to CWCapital,
and CWCapital
shall be entitled to receive therefrom, upon delivery (i) to each
of the Capmark
Master Servicer or the Special Servicer, as applicable, of a trust
receipt and
(ii) to the Trustee by the Capmark Master Servicer or the Special
Servicer, as
applicable, of a Request for Release and an acknowledgement by the
Capmark
Master Servicer or Special Servicer, as applicable, of its receipt
of the
Repurchase Price or the Substitution Shortfall Amount from
CWCapital, (1) all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it and (2) each document that constitutes a part
of the
Mortgage File that was endorsed or assigned to the Trustee shall be
endorsed or
assigned without recourse in the form of endorsement or assignment
provided to
the Trustee by the applicable Seller, as the case may be, to
CWCapital or its
designee as shall be necessary to vest in CWCapital or its designee
the legal
and beneficial ownership of each Removed Mortgage Loan to the
extent such
ownership was transferred to the Trustee, and (B) the Trustee shall
release, or
cause the release of, any escrow payments and reserve funds held by
or on behalf
of the Trustee, the Capmark Master Servicer or the Special
Servicer, in respect
of such Removed Mortgage Loan(s) to CWCapital.
(c) This Section 6 provides the sole remedies available to the
Purchaser, and its successors and permitted assigns (i.e., the
Trustee and the
holders of the Certificates) in respect of any Defect in a Mortgage
File or any
Breach. If CWCapital defaults on its obligations to cure, to
repurchase, or to
substitute for, any Mortgage Loan in accordance with this Section
6, or disputes
its obligation to cure, to repurchase, or to substitute for, any
Mortgage Loan
in accordance with Section 6, the Purchaser or the Trustee, as
applicable, may
take such action as is appropriate to enforce such payment or
performance,
including, without limitation, the institution and prosecution of
appropriate
proceedings; provided that for purposes of the remedies set forth
in this
Section 6, the sole recourse with respect to Mortgage Loans shall
be against
CWCapital. Nothing in this Agreement shall prohibit the Purchaser
or its assigns
(including the applicable Master Servicer and/or the Special
Servicer) from
pursuing any course of action authorized by the Pooling and
Servicing Agreement
while the Purchaser asserts a claim or brings a cause of action to
enforce any
rights set forth herein against a Seller (or with respect to the
Mortgage Loans,
CWCapital). To the extent the Purchaser or the Trustee, as
applicable, prevails
in such proceeding, CWCapital shall reimburse the Purchaser or the
Trustee, as
applicable, for all necessary and reasonable costs and expenses
incurred in
connection with the enforcement of such obligation of CWCapital to
cure, to
repurchase, or to substitute for, any Mortgage Loan in accordance
with this
Section 6.
(d) If one or more (but not all) of the Mortgage Loans
constituting
a cross-collateralized group of Mortgage Loans are to be
repurchased or
substituted by CWCapital as contemplated by this Section 6, then,
prior to the
subject repurchase or substitution, CWCapital or its designee shall
use its
reasonable efforts, subject to the terms of the related Mortgage
Loan(s), to
prepare and, to the extent necessary and appropriate, have executed
by the
related Borrower and record, such documentation as may be necessary
to terminate
the cross-collateralization between the Mortgage Loan(s) in
such
cross-collateralized group of Mortgage Loans that are to be
repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s)
therein, on the
other hand, such that those two groups of Mortgage Loans are each
secured only
by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly
corresponding thereto; provided that, no such termination shall be
effected
unless and until the Controlling Class Representative, if one is
then acting,
has consented in its sole discretion and the Trustee has received
from CWCapital
(i) an Opinion of Counsel to the effect that such termination would
not cause an
Adverse REMIC Event to occur and (ii) written confirmation from
each Rating
Agency that the then current rating assigned to any of the
Certificates that are
currently being rated by such Rating Agency will not be qualified,
downgraded or
withdrawn by reason of such termination; provided, further, that
CWCapital, in
the case of the related Mortgage Loans, may, at its option and
within the 90-day
cure period described above (and any applicable extension thereof),
purchase or
substitute for the entire subject cross-collateralized group of
Mortgage Loans
in lieu of effecting a termination of the cross-collateralization.
All costs and
expenses incurred by the Trustee or any Person acting on its behalf
pursuant to
this paragraph shall be included in the calculation of the
Repurchase Price for
the Mortgage Loan(s) to be repurchased or substituted. If the
cross-collateralization of any cross-collateralized group of
Mortgage Loans
cannot be terminated as contemplated by this paragraph, then
CWCapital shall
repurchase or substitute the entire subject cross-collateralized
group of
Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties
with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans,
CWCapital will
not be obligated to repurchase the Mortgage Loan or
cross-collateralized group
of Mortgage Loans if (i) the affected Mortgaged Property may be
released
pursuant to the terms of any partial release provisions in the
related Loan
Documents (and such Mortgaged Property is, in fact, released), (ii)
the
remaining Mortgaged Property(ies) satisfy the requirements, if any,
set forth in
the Loan Documents and CWCapital provides an Opinion of Counsel to
the effect
that such release would not cause an Adverse REMIC Event to occur
and (iii) each
Rating Agency then rating the Certificates shall have provided
written
confirmation that such release would not cause the then-current
ratings of the
Certificates rated by it to be qualified, withdrawn or
downgraded.
As to any Qualifying Substitute Mortgage Loan, at the direction
of
the Trustee, CWCapital shall deliver to the Custodian for such
Qualifying
Substitute Mortgage Loan (with a copy to the Capmark Master
Servicer), the
related Mortgage File with the related Note endorsed as required by
Exhibit B
hereto. Pursuant to the Pooling and Servicing Agreement, Monthly
Payments due
with respect to Qualifying Substitute Mortgage Loans in or prior to
the month of
substitution shall not be part of the Trust Fund and will be
retained by the
Capmark Master Servicer and remitted by the Capmark Master Servicer
to CWCapital
or the applicable Seller on the next succeeding Distribution Date.
For the month
of repurchase or substitution, distributions to Certificateholders
pursuant to
the Pooling and Servicing Agreement will include the Monthly
Payment(s) due on
the related Removed Mortgage Loan and received by the Capmark
Master Servicer or
the Special Servicer on behalf of the Trust on or prior to the
related date of
repurchase or substitution, as applicable, and CWCapital or the
applicable
Seller shall be entitled to retain all amounts received thereafter
in respect of
such Removed Mortgage Loan.
In any month in which CWCapital substitutes one or more
Qualifying
Substitute Mortgage Loans for one or more Removed Mortgage Loans,
pursuant to
the Pooling and Servicing Agreement, the Capmark Master Servicer
will determine
the applicable Substitution Shortfall Amount. At the direction of
the Trustee,
CWCapital shall deposit cash equal to such amount into the
Collection Account
concurrently with the delivery of the Mortgage Files for such
Qualifying
Substitute Mortgage Loans, without any reimbursement thereof. At
the direction
of the Trustee, CWCapital shall give written notice to the
Purchaser and the
Capmark Master Servicer of such deposit.
SECTION 7. Closing.
The closing of the purchase and sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Wickersham
& Taft LLP,
One World Financial Center, New York, New York 10281 at 10:00 a.m.,
New York
City time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(i) All of the representations and warranties of CWCapital
Parties
and the
Purchaser specified herein shall be true and correct as of the
Closing
Date, and the Aggregate Cut-off Date Balance shall be within
the
range
permitted by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"),
in such
forms as are agreed upon and acceptable to the Purchaser and,
in
the case
of the Pooling and Servicing Agreement (insofar as such
Agreement
affects
the obligations of CWCapital Parties hereunder) and other
documents
to be delivered by or on behalf of the Purchaser, to CWCapital
Parties,
shall be duly executed and delivered by all signatories as
required
pursuant to the respective terms thereof;
(iii) The CWCapital Parties shall have delivered and released to
the
Trustee,
the Purchaser or the Purchaser's designee, as the case may be,
all
documents and funds required to be so delivered on or before
the
Closing
Date pursuant to Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing
Files performed by or on behalf of the Purchaser pursuant to
Section 3
shall be satisfactory to the Purchaser in its reasonable
determination;
(v) All other terms and conditions of this Agreement required to
be
complied
with on or before the Closing Date shall have been complied
with,
and each
CWCapital Party shall 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;
(vi) The CWCapital Parties shall have received the Mortgage
Loan
Purchase
Price, and the CWCapital Parties shall have paid or agreed to
pay
all fees,
costs and expenses payable by it to the Purchaser pursuant to
this
Agreement; and
(vii) Neither the Underwriting Agreement nor the Certificate
Purchase
Agreement shall have been terminated in accordance with its
terms.
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 8. Closing Documents.
The Closing Documents
