EXHIBIT 10.3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
--------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2006
--------------------------------
<PAGE>
TABLE OF CONTENTS
Page
Section 1.
Transactions on or Prior to the Closing
Date......................
Section 2. Closing
Date Actions..............................................
Section 3. Conveyance
of Mortgage Loans......................................
Section 4. Depositor's
Conditions to Closing.................................
Section 5. Seller's
Conditions to Closing....................................
Section 6.
Representations and Warranties of
Seller..........................
Section 7. Obligations
of Seller.............................................
Section 8. Crossed
Mortgage Loans............................................
Section 9. Rating
Agency Fees; Costs and Expenses Associated with a Defeasance
Section 10. Representations and Warranties of
Depositor.......................
Section 11. Survival of Certain Representations, Warranties and
Covenants.....
Section 12. Transaction
Expenses..............................................
Section 13. Recording Costs and
Expenses......................................
Section 14.
Notices...........................................................
Section 15. Notice of Exchange Act Reportable
Events..........................
Section 16. Examination of Mortgage
Files.....................................
Section 17.
Successors........................................................
Section 18. Governing
Law.....................................................
Section 19.
Severability......................................................
Section 20. Further
Assurances................................................
Section 21.
Counterparts......................................................
Section 22. Treatment as Security
Agreement...................................
Schedule I
Schedule of Transaction Terms
Schedule II
Mortgage Loan Schedule
Schedule III Mortgage
Loans Constituting Mortgage Groups
Schedule IV
Mortgage Loans with Lost Mortgage Notes
Schedule V
Exceptions with Respect to Seller's Representations and
Warranties
Exhibit A Representations
and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of Lost
Mortgage Note Affidavit
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of September 1, 2006, is made by and between KEYBANK NATIONAL
ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST
BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms
attached hereto
as Schedule I, which is incorporated herein by this reference, or,
if not
defined therein or elsewhere in this Agreement, in the Pooling and
Servicing
Agreement.
II. On the Closing Date, and on the terms set forth herein,
Seller
has agreed to sell to Depositor and Depositor has agreed to
purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan
Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage
Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit
the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created
pursuant to
the Pooling and Servicing Agreement and to cause the issuance of
the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and
for
good and valuable consideration, the receipt and adequacy of which
is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior
to the Closing Date, Seller shall have delivered the Mortgage Files
with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule
to Wells
Fargo Bank, N.A. as trustee (the "Trustee") or its designee,
against receipt by
Seller of a trust receipt, pursuant to an arrangement between
Seller and the
Trustee; provided, however, that item (p) in the definition of
Mortgage File
(below) shall be delivered to the applicable Master Servicer for
inclusion in
the Servicer File (defined below) with a copy delivered to the
Trustee for
inclusion in the Mortgage File.
Section 2 Closing Date Actions. The sale of the Mortgage Loans
shall
take place on the Closing Date, subject to and simultaneously with
the deposit
of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and
the sale of (a) the Publicly Offered Certificates by Depositor to
the
Underwriters pursuant to the Underwriting Agreement and (b) the
Private
Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate
Purchase Agreement. The closing (the "Closing") shall take place at
the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial
Center, New York, New
York 10281, or such other location as agreed upon between the
parties hereto. On
the Closing Date, the following actions shall take place in
sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall
purchase
from
Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage
Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase
Price shall be paid by Depositor to Seller or at its direction
by
wire
transfer in immediately available funds to an account designated
by
Seller on
or prior to the Closing Date (or, by such other method as shall
be
mutually acceptable to Depositor and Seller). The "Mortgage
Loan
Purchase
Price" paid by Depositor shall be equal to the amount that the
Depositor
and the Seller have mutually agreed upon as the Seller's share
of the net
securitization proceeds from the sale of the Publicly Offered
Certificates and the Private Certificates as set forth in the
Closing
Statement
(which amount includes, without limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement,
Depositor
shall sell all of its right, title and interest in and to the
Mortgage
Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters
shall
purchase from Depositor, the Publicly Offered Certificates
pursuant
to the
Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser,
and the Initial Purchaser shall purchase from Depositor, the
Private
Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates
for sale
to the public pursuant to the Prospectus and the Prospectus
Supplement
and the Initial Purchaser will privately place certain classes
of the
Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date,
Seller
shall sell, convey, assign and transfer, subject to any related
servicing rights
of any applicable Master Servicer under, and/or any applicable
Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without
recourse except as
provided herein, to Depositor, free and clear of any liens, claims
or other
encumbrances, all of Seller's right, title and interest in, to and
under: (i)
each of the Mortgage Loans identified on the Mortgage Loan
Schedule, and (ii)
all property of Seller described in Section 21(b) of this
Agreement, including,
without limitation, (A) all scheduled payments of interest and
principal due on
or with respect to the Mortgage Loans after the Cut-off Date and
(B) all other
payments of interest, principal or yield maintenance charges
received on or with
respect to the Mortgage Loans after the Cut-off Date, other than
any such
payments of interest or principal or yield maintenance charges that
were due on
or prior to the Cut-off Date. The Mortgage File for each Mortgage
Loan shall
contain the following documents on a collective basis:
(a) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially
in the form
of Exhibit B hereto and a true and complete copy of the Note),
bearing, or
accompanied by, all prior and intervening endorsements, assignments
or allonges
showing a complete chain of endorsement or assignment from the
Mortgage Loan
Originator either in blank or to Seller, and further endorsed (at
the direction
of Depositor given pursuant to this Agreement) by Seller, on its
face or by
allonge attached thereto, without recourse, either in blank or to
the order of
the Trustee in the following form: "Pay to the order of Wells Fargo
Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2006-C4,
without recourse, representation or warranty, express or
implied";
(b) a duplicate original Mortgage or a counterpart thereof or,
if
such Mortgage has been returned by the related recording office,
(A) an
original, (B) a certified copy or (C) a copy thereof from the
applicable
recording office, and originals or counterparts (or originals or
copies of
certified copies from the applicable recording office) of any
intervening
assignments thereof from the Mortgage Loan Originator to Seller, in
each case in
the form submitted for recording or, if recorded, with evidence of
recording
indicated thereon;
(c) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of
the name of the assignee), from Seller (or the Mortgage Loan
Originator) either
in blank or to "Wells Fargo Bank, N.A., as trustee for the
registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage
Pass-Through Certificates, Series 2006-C4";
(d) an original, counterpart or copy of any related Assignment
of
Leases (if such item is a document separate from the Mortgage), and
the
originals, counterparts or copies of any intervening assignments
thereof from
the Mortgage Loan Originator of the Loan to Seller, in each case in
the form
submitted for recording or, if recorded, with evidence of recording
thereon;
(e) an original assignment of any related Assignment of Leases
(if
such item is a document separate from the Mortgage and to the
extent not already
assigned pursuant to clause (c) above), in recordable form (except
for any
missing recording information and, if applicable, completion of the
name of the
assignee), from Seller (or the Mortgage Loan Originator), either in
blank or to
"Wells Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through
Certificates, Series 2006-C4";
(f) an original or true and complete copy of any related
Security
Agreement (if such item is a document separate from the Mortgage),
and the
originals or copies of any intervening assignments thereof from the
Mortgage
Loan Originator to Seller;
(g) an original assignment of any related Security Agreement
(if
such item is a document separate from the Mortgage and to the
extent not already
assigned pursuant to clause (c) above), from Seller (or the
Mortgage Loan
Originator) either in blank or to "Wells Fargo Bank, N.A., as
trustee for the
registered Holders of Credit Suisse First Boston Mortgage
Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2006-C4,"
which assignment
may be included as part of an omnibus assignment covering other
documents
relating to the Mortgage Loan (provided that such omnibus
assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D)
substitution agreements,
together with any evidence of recording thereon or in the form
submitted for
recording, in those instances where the terms or provisions of the
Mortgage,
Note or any related security document have been modified or the
Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy
thereof
(together with all endorsements or riders that were issued with or
subsequent to
the issuance of such policy), or if the policy has not yet been
issued, the
original or a copy of a binding written commitment (which may be a
pro forma or
specimen title insurance policy which has been accepted or approved
in writing
by the related title insurance company) or interim binder that is
marked as
binding and countersigned by the title company, insuring the
priority of the
Mortgage as a first lien on the related Mortgaged Property,
relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the
obligations
of the Borrower under the Mortgage Loan;
(k) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the
filing or
recording thereof (including the filing number or other similar
filing
information) or, alternatively, other evidence of filing or
recording (including
the filing number or other similar filing information) acceptable
to the Trustee
(including, without limitation, evidence of such filed or recorded
UCC Financing
Statement as shown on a written UCC search report from a reputable
search firm,
such as Corporation Service Company, CT Corporation System and the
like or
printouts of on-line confirmations from such UCC filing or
recording offices or
authorized agents thereof), sufficient to perfect (and maintain the
perfection
of) the security interest held by the Mortgage Loan Originator (and
each
assignee of record prior to the Trustee) in and to the personalty
of the
Borrower at the Mortgaged Property, and original UCC Financing
Statement
assignments, in a form suitable for filing or recording, sufficient
to assign
each such UCC Financing Statement to the Trustee;
(l) the original or copy of the power of attorney (with evidence
of
recording thereon) granted by the Borrower if the Mortgage, Note or
other
document or instrument referred to above was not signed by the
Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination
agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement
relating to such other debt, if any, including any mezzanine loan
documents or
preferred equity documents, and a copy of the promissory note
relating to such
other debt (if such other debt is also secured by the related
Mortgage); (n)
with respect to any Cash Collateral Accounts and Lock-Box Accounts,
an original
or copy of any related account control agreement;
(o) an original or copy of any related Loan Agreement (if
separate
from the related Mortgage), and an original or copy of any related
Lock-Box
Agreement or Cash Collateral Account Agreement (if separate from
the related
Mortgage and Loan Agreement);
(p) the originals and copies of letters of credit, if any,
relating
to the Mortgage Loans and amendments thereto which entitles the
Trust to draw
thereon; provided that in connection with the delivery of the
Mortgage File to
the Trust, such originals shall be delivered to the applicable
Master Servicer
and copies thereof shall be delivered to the Trustee;
(q) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies
thereof;
(r) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and any originals or
copies of
amendments, modifications or extensions thereto, if any;
(s) the original or copy of any property management agreement;
(t) copies of franchise agreements and franchisor comfort
letters,
if any, for hospitality properties and any applicable
transfer/assignment
documents;
(u) a checklist of the documents included in the subject
Mortgage
File;
(v) if applicable, the original or a counterpart of any
post-closing
agreement relating to any modification, waiver or amendment of any
term of any
Mortgage Loan (including fees charged the Borrower) required to be
added to the
Mortgage File pursuant to Section 3.20(l) of the Pooling and
Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (b), (d),
(h), (k)
(other than assignments of UCC Financing Statements to be recorded
or filed in
accordance with the transfer contemplated by this Agreement), (1)
and (n) (other
than assignments of UCC Financing Statements to be recorded or
filed in
accordance with the transfer contemplated by this Agreement) above
and with
evidence of recording or filing thereon on the Closing Date, 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, then the
Seller: (i)
shall deliver, or cause to be delivered, to the Trustee or its
designee a
duplicate original or true copy of such document or instrument
certified by the
applicable public recording or filing office, the applicable title
insurance
company or Seller to be a true and complete duplicate original or
copy of the
original thereof submitted for recording or filing; and (ii) shall
deliver, or
cause to be delivered, to the Trustee or its designee either the
original of
such non-delivered document or instrument, or a photocopy thereof
(certified by
the appropriate public recording or filing office to be a true and
complete copy
of the original thereof submitted for recording or filing), with
evidence of
recording or filing thereon (with a copy to the applicable Master
Servicer),
within 120 days of the Closing Date, which period may be extended
up to two
times, in each case for an additional period of 45 days (provided
that Seller,
as certified in writing to the Trustee prior to each such 45-day
extension, is
in good faith attempting to obtain from the appropriate county
recorder's office
such original or photocopy). Compliance with this paragraph will
satisfy
Seller's delivery requirements under this Section 3 with respect to
the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered,
an original,
counterpart or certified copy, as applicable, of any of the
documents and/or
instruments required to be delivered pursuant to clauses (b), (d),
(h), (k)
(other than assignments of UCC Financing Statements to be recorded
or filed in
accordance with the transfer contemplated by this Agreement), (1)
and (n) (other
than assignments of UCC Financing Statements to be recorded or
filed in
accordance with the transfer contemplated by this Agreement) above
with evidence
of recording or filing thereon for any other reason, including
without
limitation, that such non-delivered document or instrument has been
lost, the
delivery requirements of this Agreement shall be deemed to have
been satisfied
and such non-delivered document or instrument shall be deemed to
have been
included in the related Mortgage File if a photocopy of such
non-delivered
document or instrument (with evidence of recording or filing
thereon and
certified by the appropriate recording or filing office to be a
true and
complete copy of the original thereof as filed or recorded) is
delivered to the
Trustee (with a copy to the applicable Master Servicer) on or
before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or
recording
information of the related UCC Financing Statement with respect to
any Mortgage
Loan, solely because such UCC Financing Statement has not been
returned by the
public filing or recording office where such UCC Financing
Statement has been
delivered for filing or recording, Seller shall so notify the
Trustee and shall
not be in breach of its obligations with respect to such delivery,
provided that
Seller promptly forwards such UCC Financing Statement to the
Trustee (with a
copy to the applicable Master Servicer) upon its return, together
with the
related original UCC Financing Statement assignment in a form
appropriate for
filing or recording.
Within ten (10) Business Days after the Closing Date, Seller
shall
deliver the Servicer Files with respect to each of the Mortgage
Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer
(with a copy to
the applicable Master Servicer) at the direction of the applicable
Master
Servicer), under the Pooling and Servicing Agreement on behalf of
the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer
File shall
contain all documents and records in Seller's possession relating
to such
applicable Mortgage Loans (including reserve and escrow agreements,
cash
management agreements, lockbox agreements, rent rolls, leases,
environmental and
engineering reports, third-party underwriting reports, appraisals,
surveys,
legal opinions, estoppels, financial statements, operating
statements and any
other information provided by the respective Borrower from time to
time, but
excluding any draft documents, attorney/client communications,
which are
privileged or constitute legal or other due diligence analyses, and
documents
prepared by Seller or any of its Affiliates solely for internal
communication,
credit underwriting or due diligence analyses (other than the
underwriting
information contained in the related underwriting memorandum or
asset summary
report prepared by the Seller in connection with the preparation of
Exhibit A-1
to the Prospectus Supplement)) that are not required to be a part
of a Mortgage
File in accordance with the definition thereof, together with
copies of all
instruments and documents which are required to be a part of the
related
Mortgage File in accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of
the Closing
Date, the Seller (within 30 days after the Closing Date) shall
cause to be
prepared, executed and delivered to the issuer of each such letter
of credit
such notices, assignments and acknowledgements as are required
under such letter
of credit to assign, without recourse, to, and vest in, the Trustee
(in care of
the applicable Master Servicer) (whether by actual assignment or by
amendment of
the letter of credit) the Seller's rights as the beneficiary
thereof and drawing
party thereunder. The designated beneficiary under each letter of
credit
referred to in the preceding sentence shall be the Trustee (in care
of the
applicable Master Servicer).
For purposes of this Section 3, and notwithstanding any
contrary
provision hereof or of the definition of "Mortgage File," if there
exists with
respect to any group of Crossed Mortgage Loans only one original or
certified
copy of any document or instrument described in the definition of
"Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such
group of
Crossed Mortgage Loans, the inclusion of the original or certified
copy of such
document or instrument in the Mortgage File for any of such Crossed
Mortgage
Loans and the inclusion of a copy of such original or certified
copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such
group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or
certified
copy, as the case may be, in the Mortgage File for each such
Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all
events
within three (3) Business Days after the Closing Date, cause all
funds on
deposit in escrow accounts maintained with respect to the Mortgage
Loans in the
name of Seller or any other name, to be transferred to or at the
direction of
the applicable Master Servicer (or, if applicable, to a
Sub-Servicer at the
direction of the applicable Master Servicer) for deposit into
Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off
Date, all
other payments of principal due and collected after the Cut-off
Date, and all
payments of interest on the Mortgage Loans, minus that portion of
any such
payment which is allocable to the period on or prior to the Cut-off
Date. All
scheduled payments of principal due on or before the Cut-off Date
and collected
after the Cut-off Date, together with the accompanying interest
payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage
Loan and the
contents of the related Mortgage File shall be vested in Depositor
and the
ownership of all records and documents with respect to the related
Mortgage Loan
prepared by or which come into the possession of Seller as seller
of the
Mortgage Loans hereunder, exclusive in each case of records and
documents that
are not required to be delivered hereunder by Seller, shall
immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other
amounts
received by Seller and not otherwise belonging to Seller pursuant
to this
Agreement shall be sent by Seller within three (3) Business Days
after Seller's
receipt thereof to the applicable Master Servicer via wire transfer
for deposit
by the applicable Master Servicer into the Collection Account.
Upon the sale of Certificates representing at least 10% of the
fair
value of all the Certificates to unaffiliated third parties, Seller
shall, under
generally accepted accounting principles ("GAAP"), report its
transfer of the
Mortgage Loans to Depositor, as provided herein, as a sale of the
Mortgage Loans
to Depositor in exchange for the consideration specified in Section
2 hereof. In
connection with the foregoing, upon sale of Certificates
representing at least
10% of the fair value of all the Certificates to unaffiliated third
parties,
Seller shall cause all of its financial and accounting records to
reflect such
transfer as a sale (as opposed to a secured loan). Regardless of
its treatment
of the transfer of the Mortgage Loans to the Depositor under GAAP,
Seller shall
at all times following the Closing Date cause all of its records
and financial
statements and any relevant consolidated financial statements of
any direct or
indirect parent to clearly reflect that the Mortgage Loans have
been transferred
to Depositor and are no longer available to satisfy claims of
Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's
ownership (or the ownership by any of Depositor's assignees) of the
Mortgage
Loans. Except for actions that are the express responsibility of
another party
hereunder or under the Pooling and Servicing Agreement, and further
except for
actions that Seller is expressly permitted to complete subsequent
to the Closing
Date, Seller shall, on or before the Closing Date, take all actions
required
under applicable law to effectuate the transfer of the Mortgage
Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations
of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan
Purchase
Price at the Closing Date under the terms of this Agreement are
subject to the
satisfaction of each of the following conditions at or before the
Closing:
(a) Each of the obligations of Seller required to be performed by
it
on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; all of the
representations and warranties of Seller under this Agreement
(subject to the
exceptions set forth in the Exception Report) shall be true and
correct in all
material respects as of the Closing Date; no event shall have
occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage
Files which,
with notice or the passage of time, would constitute a material
default under
this Agreement; and Depositor shall have received certificates to
the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in
escrow, all of
the following closing documents, in such forms as are agreed upon
and reasonably
acceptable to Depositor and Seller, duly executed by all
signatories other than
Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of
this
Agreement,
which shall have been delivered to and held by the Trustee or
its
designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations
and
warranties
set forth in Section 6(a) (subject to the exceptions set forth
in the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing
Date,
covering various corporate matters and such other matters as
shall
be
reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and
such
other
documents to evidence fulfillment of the conditions set forth
in
this
Agreement as Depositor or its counsel may reasonably request;
and
(vi) all other information, documents, certificates, or letters
with
respect to
the Mortgage Loans or Seller and its Affiliates as are
reasonably
requested by Depositor in order for Depositor to perform any of
it
obligations or satisfy any of the conditions on its part to be
performed
or satisfied pursuant to any sale of Mortgage Loans by
Depositor
as
contemplated herein.
(c) Seller shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before
the
Closing Date, five (5) limited powers of attorney in favor of the
Trustee and
Special Servicer empowering the Trustee and, in the event of the
failure or
incapacity of the Trustee, the Special Servicer, to record, at the
expense of
Seller, any Mortgage Loan Documents required to be recorded and any
intervening
assignments with evidence of recording thereon that are required to
be included
in the Mortgage Files. Seller shall reasonably cooperate with the
Trustee or the
applicable Special Servicer after the Closing Date, the Seller
shall deliver to
the Trustee or the applicable Special Servicer, as applicable, the
powers of
attorney described in the prior sentence in form and substance
reasonably
acceptable to the requesting party.
(e) The Seller shall have paid or caused to be paid upfront all
the
annual fees of each Rating Agency allocable to the Mortgage
Loans.
Section 5. Seller's Conditions to Closing. The obligations of
Seller
under this Agreement shall be subject to the satisfaction, on the
Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed
by
it on or prior to the Closing Date pursuant to the terms of this
Agreement,
including, without limitation, payment of the Mortgage Loan
Purchase Price,
shall have been duly performed and complied with in all material
respects; and
all of the representations and warranties of Depositor under this
Agreement
shall be true and correct in all material respects as of the
Closing Date; and
no event shall have occurred with respect to Depositor which, with
notice or the
passage of time, would constitute a material default under this
Agreement, and
Seller shall have received certificates to that effect signed by
authorized
officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably
acceptable to Seller
and Depositor, duly executed by all signatories other than Seller,
as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing
Date, with
the resolutions of Depositor authorizing the transactions set
forth
therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of
Depositor; and
(ii) such other certificates of its officers or others, such
opinions
of Depositor's counsel and such other documents required to
evidence
fulfillment of the conditions set forth in this Agreement as
Seller or
its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other
terms
and conditions of this Agreement which it is required to perform or
comply with
at or before the Closing and shall have the ability to perform or
comply with
all duties, obligations, provisions and terms which it is required
to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
national
banking
association in good standing under the laws of the United
States
of
America. Seller has conducted and is conducting its business so as
to
comply in
all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction
over it,
except
where the failure so to comply would not have a materially
adverse
effect on
the performance by Seller of this Agreement, and there is no
charge,
action, suit or proceeding before or by any court, regulatory
authority
or governmental agency or body pending or, to the knowledge of
Seller,
threatened, which is reasonably likely to materially and
adversely
affect the
performance by Seller of this Agreement or the consummation of
transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold,
transfer
and convey the Mortgage Loans and to execute and deliver this
Agreement
(and all agreements and documents executed and delivered by
Seller in
connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents
executed
and
delivered by Seller in connection herewith). Seller has duly
authorized
the execution, delivery and performance of this Agreement (and
all
agreements and documents executed and delivered by Seller in
connection
herewith), and has duly executed and delivered this Agreement
(and all
agreements and documents executed and delivered by Seller in
connection
herewith). This Agreement (and each agreement and document
executed
and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party
thereto,
constitutes the legal, valid and binding obligation of Seller
enforceable
in accordance with its
terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization,
receivership,
moratorium
or other laws relating to or affecting the rights of creditors
generally,
by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and
by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement,
nor the fulfillment of or compliance with the terms and
conditions
of this Agreement by Seller, will (A) conflict with or result
in a
breach of any of the terms, conditions or provisions of
Seller's
articles
or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result
in a
breach of,
or constitute a default or result in an acceleration under, any
agreement
or instrument to which Seller is now a party or by which it (or
any of its
properties) is bound if compliance therewith is necessary (1)
to ensure
the enforceability of this Agreement or (2) for Seller to
perform
its duties and obligations under this Agreement (or any
agreement
or
document executed and delivered by Seller in connection herewith);
(C)
conflict
with or result in a breach of any legal restriction if
compliance
therewith
is necessary (1) to ensure the enforceability of this Agreement
or (2) for
Seller to perform its duties and obligations under this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith); (D) result in the violation of any law,
rule,
regulation, order, judgment or decree to which Seller or its
property is
subject if
compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith); or (E) result
in
the
creation or imposition of any lien, charge or encumbrance that
would
have a
material adverse effect upon Seller's ability to perform its
duties
and
obligations under this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith), or materially
impair the
ability of Depositor to realize on the Mortgage Loans owned by
Seller.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will
not cause
Seller to become insolvent and (2) is not intended by Seller to
hinder,
delay or defraud any of its present or future creditors. After
giving
effect to its transfer of the Mortgage Loans, as provided
herein,
the value
of Seller's assets, either taken at their present fair saleable
value or
at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and
obligations
of Seller,
and Seller will not be left with unreasonably small assets or
capital
with which to engage in and conduct its business. Seller does
not
intend to,
and does not believe that it will, incur debts or obligations
beyond its
ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy
of
Seller are
pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration
or filing
with, or notice to, any court or governmental agency or body
having
jurisdiction or regulatory authority over Seller is required
for
(A)
Seller's execution, delivery and performance of this Agreement (or
any
agreement
or document executed and delivered by Seller in connection
herewith),
(B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the
consummation by Seller of the transactions contemplated by this
Agreement
(or any agreement or document executed and delivered by Seller
in
connection herewith) or, to the extent so required, such
consent,
approval,
authorization, order, registration, filing or notice has been
obtained,
made or given (as applicable), except for the filing or
recording
of assignments and other Mortgage Loan Documents contemplated
by
the terms
of this Agreement and except that Seller may not be duly
qualified
to transact business as a foreign corporation or licensed in
one
or more
states if such qualification or licensing is not necessary to
ensure the
enforceability of this Agreement (or any agreement or document
executed
and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is
receiving
new value. The consideration received by Seller upon the sale
of
the
Mortgage Loans owned by it constitutes at least fair consideration
and
reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause
to
believe, that it cannot perform each and every covenant of
Seller
contained
in this Agreement (or any agreement or document executed and
delivered
by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to
Seller's
knowledge, threatened in writing against Seller which are
reasonably
likely to draw into question the validity of this Agreement (or
any
agreement or document executed and delivered by Seller in
connection
herewith)
or which, either in any one instance or in the aggregate, are
reasonably
likely to materially impair the ability of Seller to perform
its duties and
obligations under this Agreement (or any agreement or
document
executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this
Agreement
(and each agreement or document executed and delivered by
Seller
in
connection herewith) is in the ordinary course of business of
Seller
and
Seller's transfer, assignment and conveyance of the Mortgage
Loans
pursuant
to this Agreement are not subject to the bulk transfer or
similar
statutory
provisions in effect in any applicable jurisdiction. The
Mortgage
Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled,
by
reason of
any act or omission of Seller, to any commission or
compensation
in
connection with the sale of the Mortgage Loans to Depositor
hereunder
except for
(A) the reimbursement of expenses as described herein or
otherwise
in connection with the transactions described in Section 2
hereof and
(B) the commissions or compensation owed to the Underwriters or
the
Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument
to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially
and
adversely
affect the ability of Seller to perform its obligations under
this
Agreement.
(xii) The
representations and warranties contained in Exhibit A
hereto,
subject to the exceptions to such representations and
warranties
set forth
on Schedule V hereto, are true and correct in all material
respects
as of the date hereof with respect to the Mortgage Loans
identified
on Schedule II.
(xiii) The information set forth in any Disclosure Information
(as
defined in
the KeyBank National Association Indemnification Agreement), as
last
forwarded to each prospective investor at or prior to the date
on
which a
contract for sale was entered into with such prospective
investor,
(i) does
not contain any untrue statement of a material fact or omit to
state any
material fact necessary to make the statements therein, in
light
of the
circumstances under which they were made, not misleading and
(ii)
complies
with the requirements of and contains all of the applicable
information required by Regulation AB (as defined in the KeyBank
National
Association Indemnification Agreement); but only to the extent that
(i)
such
information regards the Mortgage Loans and is contained in the
Loan
Detail (as
defined in the KeyBank National Association Indemnification
Agreement)
or, to the extent consistent therewith, the Diskette (as
defined in
the KeyBank National Association Indemnification Agreement) or
(ii) such
information regarding the Seller or the Mortgage Loans was
contained
in the Confidential Offering Circular or the Prospectus
Supplement
under the headings "Summary of Prospectus Supplement--Relevant
Parties/Entities," "--Sponsors and Mortgage Loan Sellers,"
"--Originators," "--The Underlying Mortgage Loans," "--Source of
the
Underlying
Mortgage Loans," "Risk Factors," "Description of the Sponsors
and
Mortgage Loan Sellers" and "Description of the Underlying
Mortgage
Loans" and
such information does not represent an incorrect restatement or
an
incorrect aggregation of correct information regarding the
Mortgage
Loans
contained in the Loan Detail.
(b) Seller hereby agrees that it shall be deemed to make, as of
the
date of substitution, to and for the benefit of the Trustee as the
holder of the
Mortgage Loan to be replaced, with respect to any replacement
mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage
Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of
this Agreement,
each of the representations and warranties set forth in Exhibit A
hereto
(references therein to "Closing Date" being deemed to be references
to the "date
of substitution" and references therein to "Cut-off Date" being
deemed to be
references to the "most recent due date for the subject Replacement
Mortgage
Loan on or before the date of substitution"). From and after the
date of
substitution, each Replacement Mortgage Loan, if any, shall be
deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7.
Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and
shall
continue in full force and effect, notwithstanding any restrictive
or qualified
endorsement on the Notes and notwithstanding subsequent termination
of this
Agreement or the Pooling and Servicing Agreement. The
representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall not be impaired by any review or
examination of the
Mortgage Files or other documents evidencing or relating to the
Mortgage Loans
or any failure on the part of Depositor to review or examine such
documents and
shall inure to the benefit of the initial transferee of the
Mortgage Loans from
Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, but shall
not inure to the benefit of any subsequent transferee
thereafter.
If Seller receives notice of a breach of any of the
representations
or warranties made by Seller with respect to the Mortgage Loans, as
of the date
hereof in Section 6(a)(xii) or as of the Closing Date pursuant to
Section
4(b)(iii) (in either case, subject to the exceptions to such
representations and
warranties set forth in the Exception Report) or with respect to
any Replacement
Mortgage Loan, as of the date of substitution pursuant to Section
6(b) (in any
such case, a "Breach"), or receives notice that (a) any document
required to be
included in the Mortgage File related to any Mortgage Loan is not
in the
Trustee's (or its designee's) possession within the time period
required herein
or (b) such document has not been properly executed or is otherwise
defective on
its face (clause (a) and clause (b) each, a "Defect" (which term
shall include
the "Defects" detailed in the immediately following paragraph) in
the related
Mortgage File), and if such Breach or Defect, as the case may be,
materially and
adversely affects or is deemed hereby to materially and adversely
affect, the
value of the related Mortgage Loan or any successor REO Loan or the
interests of
any class of Certificateholders (any Breach or Defect that
materially and
adversely affects the value of the related Mortgage Loan or the
interests of any
class of Certificateholders, a "Material Breach" or a "Material
Defect,"
respectively), then the Seller shall, upon written request of
Depositor, the
Trustee, the applicable Master Servicer or the applicable Special
Servicer, not
later than 90 days after the receipt by Seller of such written
request (subject
to the second succeeding paragraph, the "Initial Resolution
Period"): (i) cure
such Material Breach or Material Defect, as the case may be, in all
material
respects; (ii) repurchase the affected Mortgage Loan at the
applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii)
substitute,
in accordance with the Pooling and Servicing Agreement, one or more
Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement)
for such affected Mortgage Loan (provided that in no event shall
any
substitution occur later than the second anniversary of the Closing
Date) and
pay the applicable Master Servicer for deposit into the applicable
Collection
Account any Substitution Shortfall Amount (as defined in the
Pooling and
Servicing Agreement) in connection therewith; provided, however,
that if (i)
such Material Breach or Material Defect is capable of being cured
but not within
the Initial Resolution Period, (ii) such Material Breach or
Material Defect does
not cause the related Mortgage Loan not to be a "qualified
mortgage" (within the
meaning of Section 860G(a)(3) of the Code), (iii) Seller has
commenced and is
diligently proceeding with the cure of such Material Breach or
Material Defect
within the Initial Resolution Period and (iv) Seller has delivered
to the Rating
Agencies, the applicable Master Servicer, the applicable Special
Servicer and
the Trustee an Officer's Certificate that describes the reasons
that the cure
was not effected within the Initial Resolution Period and the
actions that it
proposes to take to effect the cure and that states that it
anticipates the cure
will be effected within the additional 90-day period, then Seller
shall have an
additional 90 days to cure such Material Defect or Material Breach.
If any
Breach pertains to a representation or warranty that the related
Mortgage Loan
Documents or any particular Mortgage Loan Document requires the
related Borrower
to bear the costs and expenses associated with any particular
action or matter
under such Mortgage Loan Document(s), then Seller shall cure such
Breach within
the Initial Resolution Period by reimbursing the Trust Fund (by
wire transfer of
immediately available funds) the reasonable amount of any such
costs and
expenses incurred by the applicable Master Servicer, the applicable
Special
Servicer, the Trustee or the Trust Fund that are the basis of such
Breach and
have not been reimbursed by the related Borrower; provided,
however, that in the
event any such costs and expenses exceed $10,000, Seller shall have
the option
to either repurchase the related Mortgage Loan at the applicable
Purchase Price,
replace such Mortgage Loan and pay any applicable Substitution
Shortfall Amount
or pay such costs and expenses. Except as provided in the proviso
to the
immediately preceding sentence, Seller shall remit the amount of
such costs and
expenses and upon its making such remittance, Seller shall be
deemed to have
cured such Breach in all respects. Provided such payment is made,
the second
preceding sentence describes the sole remedy available to the
Certificateholders
and the Trustee on their behalf regarding any such Breach, and
Seller shall not
be obligated to repurchase, substitute or otherwise cure such
Breach under any
circumstances. With respect to any repurchase of a Mortgage Loan
hereunder or
any substitution of one or more Qualified Substitute Mortgage Loans
for a
Mortgage Loan hereunder, (A) no such substitution may be made in
any calendar
month after the Determination Date for such month; (B) scheduled
payments of
principal and interest due with respect to the Qualified Substitute
Mortgage
Loan(s) after the month of substitution, and scheduled payments of
principal and
interest due with respect to each Mortgage Loan being repurchased
or replaced
after the related Cut-off Date and received by the applicable
Master Servicer or
the applicable Special Servicer on behalf of the Trust on or prior
to the
related date of repurchase or substitution, shall be part of the
Trust Fund; and
(C) scheduled payments of principal and interest due with respect
to each such
Qualified Substitute Mortgage Loan on or prior to the Due Date in
the month of
substitution, and scheduled payments of principal and interest due
with respect
to each Mortgage Loan being repurchased or replaced and received by
the
applicable Master Servicer or the applicable Special Servicer on
behalf of the
Trust after the related date of repurchase or substitution, shall
not be part of
the Trust Fund, and Seller (or, if applicable, any person effecting
the related
repurchase or substitution in the place of Seller) shall be
entitled to receive
such payments promptly following receipt by the applicable Master
Servicer or
the applicable Special Servicer, as applicable, under the Pooling
and Servicing
Agreement.
Any of the following will cause a document in the Mortgage File
to
be deemed to have a "Material Defect": (a) the absence from the
Mortgage File of
the original signed Note, unless the Mortgage File contains a
signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of
the original
signed Mortgage, unless there is included in the Mortgage File a
certified copy
of the Mortgage as recorded or as sent for recordation, together
with a
certificate stating that the original signed Mortgage was sent for
recordation,
or a copy of the Mortgage and the related recording information;
(c) the absence
from the Mortgage File of the item called for by clause (i) of the
definition of
Mortgage File in Section 3; (d) the absence from the Mortgage File
of any
intervening assignments required to create an effective assignment
to the
Trustee on behalf of the Trust, unless there is included in the
Mortgage File a
certified copy of the intervening assignment as recorded or as sent
for
recordation, together with a certificate stating that the original
intervening
assignment was sent for recordation, or a copy of the intervening
assignment and
the related recording information; or (e) the absence from the
Mortgage File of
any required original letter of credit (unless such original has
been delivered
to the applicable Master Servicer and copy thereof is part of the
Mortgage
File), provided that such Defect may be cured by any substitute
letter of credit
or cash reserve on behalf of the related Borrower; or (f) the
absence from the
Mortgage File of the original or a copy of any required ground
lease.
Notwithstanding anything herein to the contrary, the failure to
include a
document checklist in a Mortgage File shall in no event constitute
a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code)
shall be deemed a "Material Defect" or "Material Breach," as
applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be
90 days
following the earlier of Seller's receipt of notice pursuant to
this Section 7
or its discovery of such Defect or Breach (which period shall not
be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure
a
Material Breach or a Material Defect in all material respects
within the
applicable Initial Resolution Period (as extended pursuant to this
Section 7),
or if such Material Breach or Material Defect is not capable of
being so
corrected or cured within such period, then Seller shall repurchase
or
substitute for the affected Mortgage Loan as provided in this
Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for
as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a
part of a
Mortgage Group (as defined below) and (iii) the applicable Breach
or Defect does
not constitute a Breach or Defect, as the case may be, as to any
other Crossed
Mortgage Loan in such Mortgage Group (without regard to this
paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed
to
constitute a Breach or Defect, as the case may be, as to any other
Crossed
Mortgage Loan in the Mortgage Group for purposes of the above
provisions, and
Seller will be required to repurchase or substitute for such other
Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with
the provisions
of this Section 7 unless the Crossed Mortgage Loan Repurchase
Criteria would be
satisfied if Seller were to repurchase or substitute for only the
affected
Crossed Mortgage Loans as to which a Material Breach or Material
Defect had
occurred without regard to this paragraph, and in the case of
either such
repurchase or substitution, all of the other requirements set forth
in the
Pooling and Servicing Agreement applicable to a repurchase or
substitution, as
the case may be, would be so satisfied. In the event that one or
more of such
other Crossed Mortgage Loans satisfy the Crossed Mortgage Loan
Repurchase
Criteria, Seller may elect either to repurchase or substitute for
only the
affected Crossed Mortgage Loan as to which the related Breach or
Defect exists
or to repurchase or substitute for all of the Crossed Mortgage
Loans in the
related Mortgage Group. Seller shall be responsible for the cost of
any
Appraisal required to be obtained by the applicable Master Servicer
to determine
if the Crossed Mortgage Loan Repurchase Criteria have been
satisfied, so long as
the scope and cost of such Appraisal has been approved by Seller
(such approval
not to be unreasonably withheld). For purposes of this paragraph, a
"Mortgage
Group" is any group of Mortgage Loans identified as a Mortgage
Group on Schedule
III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties
(but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller
will not be
obligated to repurchase or substitute for the entire Mortgage Loan
if the
affected Mortgaged Property may, pursuant to the partial release
provisions in
the related Mortgage Loan Documents, be released and the Mortgaged
Property
remaining after such release satisfies the requirements, if any,
set forth in
the Mortgage Loan Documents and (i) Seller provides an opinion of
counsel to the
effect that such partial release would not cause an Adverse REMIC
Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii)
Seller pays (or
causes to be paid) the applicable release price required under the
Mortgage Loan
Documents and, to the extent not reimbursable out of the release
price pursuant
to the related Mortgage Loan Documents, any additional amounts
necessary to
cover all reasonable out-of-pocket expenses reasonably incurred by
the
applicable Master Servicer, the applicable Special Servicer, the
Trustee or the
Trust Fund in connection therewith, including any unreimbursed
advances and
interest thereon made with respect to the Mortgaged Property that
is being
released and (iii) such cure by release of such Mortgaged Property
is effected
within the time periods specified for cure of a Material Breach or
Material
Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to
Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee,
the Trustee
as its assignee, by wire transfer of immediately available funds to
the account
designated by Depositor or the Trustee, as the case may be, and
Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in
the case of a
substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and
Servicer File
(and all other documents pertaining to such Mortgage Loan possessed
by the
Depositor or the Trustee, as applicable, or on its behalf, but
excluding any
draft documents, attorney/client privileged communications and
documents
prepared by the Depositor or the Trustee (or by the Master Servicer
or the
Special Servicer on behalf of the Trust), as applicable, or any of
its
Affiliates solely for internal communication) or cause them to be
released, to
Seller and shall execute and deliver such instruments of transfer,
endorsement
or assignment as shall be necessary to vest in Seller the legal and
beneficial
ownership of such Mortgage Loan (including any property acquired in
respect
thereof or proceeds of any insurance policy with respect thereto)
and the
related Mortgage Loan Documents and shall deliver to Seller any
escrow payments
and reserve funds held by it, or on its behalf, with respect to
such repurchased
or replaced Mortgage Loan.
It is understood and agreed that the obligations of Seller set
forth
in this Section 7 constitute the sole remedies available to
Depositor and its
successors and assigns against Seller respecting any Breach or
Defect affecting
a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller
repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner
prescribed above
while the Trustee continues to hold any related Crossed Mortgage
Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to
modify upon
such repurchase or substitution, the related Mortgage Loan
Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or
substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans
still held by
the Trustee, on the other, would no longer be cross-defaulted
or
cross-collateralized with one another; provided that Seller shall
have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that
such
modification shall not cause an Adverse REMIC Event; and provided,
further, that
if such Opinion of Counsel cannot be furnished, Seller and
Depositor hereby
agree that such repurchase or substitution of only the affected
Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not
be permitted.
Any reserve or other cash collateral or letters of credit securing
the subject
Crossed Mortgage Loans shall be allocated between such Mortgage
Loans in
accordance with the Mortgage Loan Documents. All other terms of the
Mortgage
Loans shall remain in full force and effect, without any
modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with
a
Defeasance. The Seller shall pay all Rating Agency fees associated
with an
assumption of a Mortgage Loan to the extent such fees have not been
paid by the
related Borrower and such Borrower is not required to pay them
under the terms
of the related Mortgage Loan Documents in effect on or before the
Closing Date,
the payment of which fees shall constitute the sole remedy of any
breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto
unless the
Seller elects to repurchase or substitute for such Mortgage Loan in
accordance
with the second paragraph of Section 7. The Seller shall pay all
reasonable
costs and expenses associated with a defeasance of a Mortgage Loan
to the extent
such costs and expenses have not been paid by the related Borrower
and such
Borrower is not required to pay them under the terms of the related
Mortgage
Loan Documents in effect on or before the Closing Date, the payment
of which
fees shall constitute the sole remedy of any breach by a Seller
of
representation (liv)(F) set forth on Exhibit A hereto unless the
Seller elects
to repurchase or substitute for such Mortgage Loan in accordance
with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor.
Depositor
hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full
corporate power and authority to own its assets and conduct its
business as it
is conducted, and is duly qualified as a foreign corporation in
good standing in
all jurisdictions in which the ownership or lease of its property
or the conduct
of its business requires such qualification (except where the
failure to qualify
would not have a materially adverse effect on the consummation of
any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement
and
the performance of Depositor's obligations hereunder are within the
corporate
power of Depositor and have been duly authorized by Depositor and
neither the
execution and delivery by Depositor of this Agreement nor the
compliance by
Depositor with the provisions hereof, nor the consummation by
Depositor of the
transactions contemplated by this Agreement, will (i) conflict with
or result in
a breach of, or constitute a default under, the certificate of
incorporation or
by-laws of Depositor or, after giving effect to the consents or
taking of the
actions contemplated by clause (ii) of this paragraph (b), any of
the provisions
of any law, governmental rule, regulation, judgment, decree or
order binding on
Depositor or its properties, or any of the provisions of any
material indenture
or mortgage or any other material contract or other instrument to
which
Depositor is a party or by which it is bound or result in the
creation or
imposition of any lien, charge or encumbrance upon any of its
properties
pursuant to the terms of any such indenture, mortgage, contract or
other
instrument or (ii) require any consent of, notice to, or filing
with any person,
entity or governmental body, which has not been obtained or made by
Depositor,
except where, in any of the instances contemplated by clause (i)
above or this
clause (ii), the failure to do so will not have a material and
adverse effect on
the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor
and this Agreement constitutes a legal, valid and binding
instrument,
enforceable against Depositor in accordance with its terms,
subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency,
moratorium and other laws affecting the rights of creditors
generally and to
general principles of equity and the discretion of the court
(regardless of
whether enforcement of such remedies is considered in a proceeding
in equity or
at law) and, as to rights of indemnification hereunder, subject to
limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or
proceeding by or before any court, regulatory authority or
governmental agency
or body pending or, to the knowledge of Depositor, threatened
against Depositor
the outcome of which could be reasonably expected to materially and
adversely
affect the consummation of any transactions contemplated by this
Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth
in or made
pursuant to this Agreement, and the respective obligations of the
parties hereto
under Sections 7 and 13 of this Agreement, will remain in full
force and effect,
regardless of any investigation or statement as to the result
thereof made by or
on behalf of any party and will survive payment for the various
transfers
referred to herein and delivery of the Certificates or termination
of this
Agreement.
Section 12. Transaction Expenses. In connection with the
Closing
(and unless otherwise expressly provided herein, including, wit
