EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of October 27, 2005, between PNC BANK NATIONAL ASSOCIATION (the
"Seller") and
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily and commercial mortgage loans (the "Mortgage
Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as
Annex A. The Purchaser intends to deposit the Mortgage Loans, along
with certain
other mortgage loans (the "Other Mortgage Loans"), into a trust
fund (the "Trust
Fund"), the beneficial ownership of which will be evidenced by
multiple classes
(each, a "Class") of mortgage pass-through certificates (the
"Certificates").
One or more "real estate mortgage investment conduit" ("REMIC")
elections will
be made with respect to most of the Trust Fund. The Trust Fund will
be created
and the Certificates will be issued pursuant to a Pooling and
Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 2005,
among the Purchaser, as depositor, Midland Loan Services, Inc., as
master
servicer (the "Master Servicer"), LNR Partners, Inc., as special
servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee
(the
"Trustee"), and ABN AMRO Bank N.V., as fiscal agent. Capitalized
terms used
herein (including the schedules attached hereto) but not defined
herein (or in
such schedules) have the respective meanings set forth in the
Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have
an aggregate principal balance of $230,108,553 (the "PNC BANK
Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the
close of
business on the Cut-off Date, after giving effect to any payments
due on or
before such date, whether or not such payments are received. The
PNC BANK
Mortgage Loan Balance, together with the aggregate principal
balance of the
Other Mortgage Loans as of the Cut-off Date (after giving effect to
any payments
due on or before such date whether or not such payments are
received), is
expected to equal an aggregate principal balance (the "Cut-off Date
Pool
Balance") of $3,878,244,727 (subject to a variance of plus or minus
5.0%). The
purchase and sale of the Mortgage Loans shall take place on
November 15, 2005 or
such other date as shall be mutually acceptable to the parties to
this Agreement
(the "Closing Date"). The consideration (the "Aggregate Purchase
Price") for the
Mortgage Loans shall consist of an amount equal to (i) 98.6072% of
the PNC BANK
Mortgage Loan Balance as of the Cut-off Date, plus (ii) $468,040,
which amount
represents the amount of interest accrued on the PNC BANK Mortgage
Loan Balance,
as agreed to by the Seller and the Purchaser.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the
Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the
Seller of the Aggregate Purchase Price and satisfaction or waiver
of the other
conditions to closing that are for the benefit of the Seller (which
conditions
shall be deemed to have been satisfied or waived upon the Seller's
receipt of
the Aggregate Purchase Price), the Seller does hereby sell,
transfer, assign,
set over and otherwise convey to the Purchaser, without recourse
(except as set
forth in this Agreement), all the right, title and interest of the
Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as
of such date,
on a servicing-released basis, together with all of the Seller's
right, title
and interest in and to the proceeds of any related title, hazard,
primary
mortgage or other insurance proceeds and any escrow, reserve or
comparable
accounts related to the Mortgage Loans, subject, in the case of any
Mortgage
Loan that is part of a Loan Combination, to the rights of the
holder(s) of any
other mortgage loan(s) in the related Loan Combination in such
proceeds and
reserve or comparable accounts, and further subject to that certain
Servicing
Rights Purchase Agreement, dated as of November 15, 2005, between
the Master
Servicer and the Seller.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date but collected after the Cut-off Date,
and
recoveries of principal and interest collected on or before the
Cut-off Date
(only in respect of principal and interest on the Mortgage Loans
due on or
before the Cut-off Date and principal prepayments thereon), shall
belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the
Purchaser, deliver to the Trustee (with a copy to the Master
Servicer and the
Special Servicer within ten Business Days of the Closing Date) the
documents and
instruments specified below under clauses (i), (ii), (vii), (ix)(A)
and (xi)(D)
and shall, not later than the date that is 30 days after the
Closing Date,
deliver to the Trustee the remaining documents and instruments
specified below
with respect to each Mortgage Loan that is a Serviced Mortgage Loan
(the
documents and instruments specified below, collectively, the
"Mortgage File").
All Mortgage Files so delivered will be held by the Trustee in
escrow for the
benefit of the Seller at all times prior to the Closing Date. The
Mortgage File
for each Mortgage Loan that is a Serviced Mortgage Loan shall
contain the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and
all
intervening endorsements thereon, endorsed on its face or by
allonge
attached thereto (without recourse, representation or warranty,
express or
implied) to the order of "LaSalle Bank National Association, as
trustee for
the registered holders of CD 2005-CD1 Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CD1" or
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in blank (or a lost note affidavit and indemnity with a copy of
such
Mortgage Note attached thereto);
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet
returned
by the applicable recording office) with evidence of recording
indicated
thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with any
and all intervening assignments thereof, in each case (unless not
yet
returned by the applicable recording office) with evidence of
recording
indicated thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank,
the name
of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases
(if such item is a document separate from the Mortgage) and (C) any
other
recorded document relating to the Mortgage Loan otherwise included
in the
Mortgage File, in favor of "LaSalle Bank National Association, as
trustee
for the registered holders of CD 2005-CD1 Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates, Series 2005-CD1"
(and, in
the case of a Serviced Loan Combination, also on behalf of the
related
Non-Trust Loan Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant
to clause
(iv) above), in favor of "LaSalle Bank National Association, as
trustee for
the registered holders of CD 2005-CD1 Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CD1" (and, in the
case of a
Serviced Loan Combination, also on behalf of the related Non-Trust
Loan
Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms
or provisions of the Mortgage or Mortgage Note have been
consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located,
an original or copy of an irrevocable, binding commitment (which
may be a
pro forma policy or marked version of the policy that has been
executed by
an authorized representative of the title company or an agreement
to
provide the same pursuant to binding escrow instructions executed
by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any
prior
UCC Financing Statements in favor of the originator of the Mortgage
Loan or
in favor of any assignee prior to the
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Trustee (but only to the extent the Seller had possession of such
UCC
Financing Statements when it was to deliver the subject Mortgage
File on or
prior to the Closing Date) and, if there is an effective UCC
Financing
Statement and continuation statement in favor of the Seller on
record with
the applicable public office for UCC Financing Statements, an
original UCC
Financing Statement assignment, in form suitable for filing in
favor of
"LaSalle Bank National Association, as trustee for the registered
holders
of CD Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2005-CD1" (and, in the case of any Serviced
Loan
Combination, also on behalf of the related Non-Trust Loan
Noteholder(s)),
as assignee, or in blank;
(ix) an original or a copy of any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) secured
creditor
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor;
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement or (D) letter of credit relating to the Mortgage
Loan;
and
(xii) with respect to each Non-Trust Loan that is part of a
Serviced Loan Combination, all of the above documents with respect
to such
Non-Trust Loan and the related Loan Combination Intercreditor
Agreement;
provided that a copy of the Mortgage Note relating to each such
Non-Trust
Loan, rather than the original, shall be provided, and no
endorsements to
such note shall be provided.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall,
as to each
Mortgage Loan, promptly (and in any event, as to any Mortgage Loan,
within 90
days following the latest of (i) the Closing Date and (ii) the
delivery of the
related Mortgage(s), Assignment(s) of Leases, recordable documents,
and UCC
Financing Statements to the Trustee complete (if and to the extent
necessary)
and cause to be submitted for recording or filing, as the case may
be, in the
appropriate public office for real property records or UCC
Financing Statements,
as appropriate, each assignment of Mortgage, assignment of
Assignment of Leases
and assignment of any other recordable documents relating to each
such Mortgage
Loan, in favor of the Trustee referred to in Sections 2(c)(iv)(A),
(B) and (C)
and each assignment of a UCC Financing Statement in favor of the
Trustee and so
delivered to the Trustee and referred to in Section 2(c)(viii). The
Seller shall
cause the recorded original of each such assignment of recordable
documents to
be delivered to the Trustee or its designee following recording,
and shall cause
the file copy of each such UCC Financing Statement to be delivered
to the
Trustee or its designee following filing; provided that in those
instances where
the public recording office retains the original assignment of
Mortgage or
assignment of Assignment of Leases, the Seller or the
Recording/Filing Agent
shall obtain therefrom a certified copy of the recorded original,
which shall be
delivered to the Trustee or its designee. If any such document or
instrument is
lost or returned unrecorded or unfiled, as the case may be, because
of a defect
therein, the Seller shall promptly prepare or cause to be prepared
a substitute
therefor or cure such defect, as the case may be, and thereafter
cause the same
to be duly recorded or filed,
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as appropriate. The Seller shall be responsible for the
out-of-pocket costs and
expenses of the Recording/Filing Agent in connection with its
performance of the
recording, filing and delivery obligations contemplated above.
(e) All documents and records (except draft documents,
attorney-client
privileged communications and internal correspondence, credit
underwriting or
due diligence analyses, credit committee briefs or memoranda or
other internal
approval documents or data or internal worksheets, memoranda,
communications or
evaluations and other underwriting analysis of the Seller) relating
to, and
necessary for the servicing and administration of, each Mortgage
Loan (other
than the Outside Serviced Mortgage Loan) and in the Seller's
possession that are
not required to be delivered to the Trustee shall promptly be
delivered or
caused to be delivered by the Seller to the Master Servicer or at
the direction
of the Master Servicer to the appropriate sub-servicer, together
with any
related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to
assign or otherwise grant to the Trust Fund the benefit of any
letters of credit
in the name of the Seller which secure any Mortgage Loan. Without
limiting the
generality of the foregoing, if a draw upon a letter of credit is
required
before its transfer to the Trust Fund can be completed, the Seller
shall draw
upon such letter of credit for the benefit of the Trust pursuant to
written
instructions from the Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized and
validly existing and in good standing under the laws of the United
States
and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it
and to
execute, deliver and comply with its obligations under the terms of
this
Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due
authorization,
execution and delivery hereof by the Purchaser, constitutes a
legal, valid
and binding obligation of the Seller, enforceable against the
Seller in
accordance with its terms, except as such enforcement may be
limited by
bankruptcy, insolvency, reorganization, receivership, moratorium
and other
laws affecting the enforcement of creditors' rights in general, as
they may
be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of
whether such
enforcement is considered in a proceeding in equity or at law), and
by
public policy considerations underlying the securities laws, to the
extent
that such public policy considerations limit the enforceability of
the
provisions of this Agreement which purport to provide
indemnification from
liabilities under applicable securities laws;
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(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's charter or bylaws, (B)
violate
any law or regulation or any administrative decree or order to
which it is
subject or (C) constitute a material default (or an event which,
with
notice or lapse of time, or both, would constitute a material
default)
under, or result in the breach of, any material contract, agreement
or
other instrument to which the Seller is a party or by which the
Seller is
bound, which default might have consequences that would, in the
Seller's
reasonable and good faith judgment, materially and adversely affect
the
condition (financial or other) or operations of the Seller or its
properties or have consequences that would materially and adversely
affect
its performance hereunder;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default might
have consequences that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the condition (financial
or
other) or operations of the Seller or its properties or have
consequences
that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any charter, bylaws or any other corporate
restriction or any judgment, order, writ, injunction, decree, law
or
regulation that would, in the Seller's reasonable and good faith
judgment,
materially and adversely affect the ability of the Seller to
perform its
obligations under this Agreement or that requires the consent of
any third
person to the execution of this Agreement or the performance by the
Seller
of its obligations under this Agreement (except to the extent such
consent
has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of, or compliance by the Seller with,
this
Agreement or the consummation of the transactions contemplated by
this
Agreement except as have previously been obtained, and no bulk sale
law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good
faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of
its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the
transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans
to the
Purchaser in exchange for consideration consisting of the Aggregate
Purchase Price. The consideration received by the Seller upon the
sale of
the Mortgage Loans to the Purchaser will constitute at least
reasonably
equivalent value and fair consideration for the Mortgage Loans. The
Seller
will be solvent at all relevant times prior to, and will not be
rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The
Seller
is not selling the Mortgage
6
Loans to the Purchaser with any intent to hinder, delay or defraud
any of
the creditors of the Seller.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I
and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the
Purchaser,
which representations and warranties are subject to the exceptions
set forth on
Schedule III.
(c) If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement
relating to a Mortgage Loan, then the Seller shall, not later than
90 days from
receipt of such notice (or, in the case of a Document Defect or
Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days
from any party
to the Pooling and Servicing Agreement discovering such Document
Defect or
Breach, provided the Seller receives such notice in a timely
manner), if such
Document Defect or Breach shall materially and adversely affect the
value of the
applicable Mortgage Loan or the interests of the Certificateholders
therein,
cure such Document Defect or Breach, as the case may be, in all
material
respects, which shall include payment of actual losses and any
Additional Trust
Fund Expenses directly resulting therefrom or, if such Document
Defect or Breach
(other than omissions solely due to a document not having been
returned by the
related recording office) cannot be cured within such 90-day
period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase
Price not later
than the end of such 90-day period, or (ii) substitute a Qualified
Substitute
Mortgage Loan for such affected Mortgage Loan not later than the
end of such
90-day period (and in no event later than the second anniversary of
the Closing
Date) and pay the Master Servicer for deposit into the Certificate
Account, any
Substitution Shortfall Amount in connection therewith; provided,
however, that,
if a Document Defect or Breach is capable of being cured but not
within such
90-day period and the Seller has commenced and is diligently
proceeding with the
cure of such Document Defect or Breach within such 90-day period,
then unless
such Document Defect or Breach would cause the Mortgage Loan not to
be a
Qualified Mortgage, such Seller shall have an additional 90 days to
complete
such cure (or, failing such cure, to repurchase or substitute for
the related
Mortgage Loan); and provided, further, that with respect to such
additional
90-day period the Seller shall have delivered an officer's
certificate to the
Trustee setting forth what actions the Seller is pursuing in
connection with the
cure thereof and stating that the Seller anticipates that such
Document Defect
or Breach will be cured within the additional 90-day period. For a
period of two
years from the Closing Date, so long as there remains any Mortgage
File relating
to a Mortgage Loan as to which there is an uncured Document Defect,
the Seller
shall provide the officer's certificate to the Trustee described
above as to the
reasons such Document Defect remains uncured and as to the actions
being taken
to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution shall
be part of the Trust Fund. Periodic Payments due with respect to
any Qualified
Substitute Mortgage Loan on or prior to the related date of
substitution shall
not be part of the Trust Fund and shall be remitted to the Seller
promptly
following receipt.
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(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage
Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach
does not
constitute a Document Defect or Breach, as the case may be, as to
any other
Crossed Loan in such Crossed Group (without regard to this
paragraph), then the
applicable Document Defect or Breach, as the case may be, will be
deemed to
constitute a Document Defect or Breach, as the case may be, as to
each other
Crossed Loan in the Crossed Group for purposes of this paragraph,
and the Seller
will be required to repurchase or substitute for the remaining
Crossed Loan(s)
in the related Crossed Group as provided in the immediately
preceding paragraph
unless such other Crossed Loans in such Crossed Group satisfy the
Crossed Loan
Repurchase Criteria and satisfy all other criteria for substitution
or
repurchase, as applicable, of Mortgage Loans set forth herein or in
the Pooling
and Servicing Agreement. In the event that the remaining Crossed
Loans satisfy
the aforementioned criteria, the Seller may elect either to
repurchase or
substitute for only the affected Crossed Loan as to which the
related Document
Defect or Breach exists or to repurchase or substitute for all of
the Crossed
Loans in the related Crossed Group. The Seller shall be responsible
for the cost
of any Appraisal required to be obtained by the Master Servicer to
determine if
the Crossed Loan Repurchase Criteria have been satisfied, so long
as the scope
and cost of such Appraisal has been approved by the Seller (such
approval not to
be unreasonably withheld). To the extent that the Seller is
required to purchase
or substitute for a Crossed Loan hereunder in the manner prescribed
above while
the Purchaser continues to hold any other Crossed Loans in such
Crossed Group,
neither the Seller nor the Purchaser shall enforce any remedies
against the
other's Primary Collateral, but each is permitted to exercise
remedies against
the Primary Collateral securing its respective Crossed Loans,
including, with
respect to the Purchaser, the Primary Collateral securing the
Crossed Loans
still held by the Purchaser, so long as such exercise does not
materially impair
the ability of the other party to exercise its remedies against its
Primary
Collateral.
If the exercise of remedies by one party would materially impair
the
ability of the other party to exercise its remedies with respect to
the Primary
Collateral securing the Crossed Loans held by such party, then the
Seller and
the Purchaser shall forbear from exercising such remedies until the
Mortgage
Loan documents evidencing and securing the relevant Crossed Loans
can be
modified in a manner that complies with this Agreement to remove
the threat of
material impairment as a result of the exercise of remedies or some
other
accommodation can be reached. Any reserve or other cash collateral
or letters of
credit securing the Crossed Loans shall be allocated between such
Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified
in the
related Mortgage Loan documents, on a pro rata basis based upon
their
outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate
the related
cross-collateralization and/or cross-default provisions, as a
condition to such
modification, the Seller shall furnish to the Trustee an Opinion of
Counsel that
such modification shall not cause an Adverse REMIC Event. Any
expenses incurred
by the Purchaser in connection with such modification or
accommodation
(including but not limited to recoverable attorney fees) shall be
paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d),
if there is a Document Defect or Breach (which Document Defect or
Breach shall
materially and adversely affect the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
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shall not be obligated to repurchase or substitute the Mortgage
Loan if (i) the
affected Mortgaged Property(ies) may be released or substituted
pursuant to the
terms of any partial release or substitution provisions in the
related Mortgage
Loan documents (and such Mortgaged Property(ies) are, in fact,
released or
substituted) and, to the extent not covered by the applicable
release price (if
any) required under the related Mortgage Loan documents, the Seller
pays (or
causes to be paid) any additional amounts necessary to cover all
reasonable
out-of-pocket expenses reasonably incurred by the Master Servicer,
the Special
Servicer, the Trustee or the Trust Fund in connection with such
release or
substitution, (ii) the remaining Mortgaged Property(ies) satisfy
the
requirements, if any, set forth in the related Mortgage Loan
documents and the
Seller provides an opinion of counsel to the effect that such
release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC
under the Code
or result in the imposition of any tax on "prohibited transactions"
or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) 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, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of
one
or more Mortgage Loans contemplated hereby, upon receipt of a
certificate from a
Servicing Officer certifying as to the receipt of the Purchase
Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate
Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for
the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer,
respectively, if applicable, (i) the Trustee shall execute and
deliver such
endorsements and assignments as are provided to it by the Master
Servicer, in
each case without recourse, representation or warranty, as shall be
necessary to
vest in the Seller, the legal and beneficial ownership of each
repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the
Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each
tender to the
Seller, upon delivery to each of them of a receipt executed by the
Seller, all
portions of the Mortgage File and other documents pertaining to
such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special
Servicer
shall release to the Seller any Escrow Payments and Reserve Funds
held by it in
respect of such repurchased or deleted Mortgage Loans.
(f) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the
Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and
warranties
are being made for risk allocation purposes. This Section 3
provides the sole
remedy available to the Certificateholders, or the Trustee on
behalf of the
Certificateholders, respecting any Document Defect in a Mortgage
File or any
Breach of any representation or warranty set forth in or required
to be made
pursuant to this Section 3.
SECTION 4. Representations and Warranties of the Purchaser. In
order
to induce the Seller to enter into this Agreement, the Purchaser
hereby
represents and warrants for the benefit of the Seller as of the
date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has
the full corporate power and authority and legal right to acquire
the Mortgage
Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
9
(b) This Agreement has been duly and validly authorized, executed
and
delivered by the Purchaser, all requisite action by the Purchaser's
directors
and officers has been taken in connection therewith, and (assuming
the due
authorization, execution and delivery hereof by the Seller) this
Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (i) laws relating to bankruptcy, insolvency,
reorganization,
receivership or moratorium, (ii) other laws relating to or
affecting the rights
of creditors generally, or (iii) general equity principles
(regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(c) Except as may be required under federal or state securities
laws
(and which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required, under federal or
state law, for
the execution, delivery and performance by the Purchaser of or
compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser
of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the
execution, delivery
or performance of this Agreement by the Purchaser, results or will
result in the
creation or imposition of any lien on any of the Purchaser's assets
or property,
or conflicts or will conflict with, results or will result in a
breach of, or
constitutes or will constitute a default under (i) any term or
provision of the
Purchaser's articles of association or bylaws, (ii) any term or
provision of any
material agreement, contract, instrument or indenture, to which the
Purchaser is
a party or by which the Purchaser is bound, or (iii) any law, rule,
regulation,
order, judgment, writ, injunction or decree of any court or
governmental
authority having jurisdiction over the Purchaser or its assets,
which default
might have consequences that would, in the Purchaser's reasonable
and good faith
judgment, materially and adversely affect the condition (financial
or other) or
operations of the Purchaser or its properties or have consequences
that would
materially and adversely affect its performance hereunder.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will
report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for
consideration
consisting of the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending
or
to the knowledge of the Purchaser, threatened against the Purchaser
in any court
or by or before any other governmental agency or instrumentality
which would, in
the Purchaser's reasonable and good faith judgment, materially and
adversely
affect the validity of this Agreement or any action taken in
connection with the
obligations of the Purchaser contemplated herein, or which would be
likely to
impair materially the ability of the Purchaser to enter into and/or
perform
under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or governmental agency, which default might have
consequences that
would materially and adversely affect the
10
condition (financial or other) or operations of the Purchaser or
its properties
or might have consequences that would materially and adversely
affect its
performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the
"Closing") shall be held at the offices of Sidley Austin Brown
& Wood LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth
in or made pursuant to Section 3(a) and Section 3(b) of this
Agreement and all
of the representations and warranties of the Purchaser set forth in
Section 4 of
this Agreement shall be true and correct in all material respects
as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the
obligations of the Seller hereunder) and all documents specified in
Section 6 of
this Agreement (the "Closing Documents"), in such forms as are
agreed upon and
acceptable to the Purchaser, the Seller, the Underwriters, the
Initial
Purchasers and their respective counsel in their reasonable
discretion, shall be
duly executed and delivered by all signatories as required pursuant
to the
respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a
Custodian on its behalf) and the Master Servicer, respectively, all
documents
represented to have been or required to be delivered to the Trustee
and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with in all
material respects and the Seller and the Purchaser shall each have
the ability
to comply with all terms and conditions and perform all duties and
obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to
the Purchaser or otherwise pursuant to this Agreement as of the
Closing Date;
and
(f) Letters from the independent accounting firms of Ernst &
Young LLP
[and Deloitte & Touche LLP] in form satisfactory to the
Purchaser, relating to
certain information regarding the Mortgage Loans and Certificates
as set forth
in the Prospectus and Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
11
SECTION 6. Closing Documents. The Closing Documents shall consist
of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer
of the Seller and dated the Closing Date, and upon which the
Purchaser, the
Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the
representations and warranties of the Seller in this Agreement are
true and
correct in all material respects at and as of the Closing Date with
the same
effect as if made on such date; and (ii) the Seller has, in all
material
respects, complied with all the agreements and satisfied all the
conditions on
its part that are required under this Agreement to be performed or
satisfied at
or prior to the Closing Date;
(c) An officer's certificate from the Seller, dated the Closing
Date,
and upon which the Purchaser may rely, to the effect that each
individual who,
as an officer or representative of the Seller, signed this
Agreement or any
other document or certificate delivered on or before the Closing
Date in
connection with the transactions contemplated herein, was at the
respective
times of such signing and delivery, and is as of the Closing Date,
duly elected
or appointed, qualified and acting as such officer or
representative, and the
signatures of such persons appearing on such documents and
certificates are
their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed
in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to
the effect
that (i) such officer has carefully examined the Specified Portions
(as defined
below) of the Prospectus Supplement and nothing has come to his
attention that
would lead him to believe that the Specified Portions of the
Prospectus
Supplement, as of the date of the Prospectus Supplement or as of
the Closing
Date, included or include any untrue statement of a material fact
relating to
the Mortgage Loans or the Seller or omitted or omit to state
therein a material
fact necessary in order to make the statements therein relating to
the Mortgage
Loans or the Seller, in light of the circumstances under which they
were made,
not misleading, and (ii) such officer has examined the Specified
Portions of the
Memorandum and nothing has come to his attention that would lead
him to believe
that the Specified Portions of the Memorandum, as of the date
thereof or as of
the Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein related to
the Mortgage
Loans or the Seller, in the light of the circumstances under which
they were
made, not misleading. The "Specified Portions" of the Prospectus
Supplement
shall consist of Annexes A-1, A-2, A-3, A-4, A-5 and B thereto
(insofar as the
information contained in such annexes relates to the Mortgage
Loans), the
diskette which accompanies the Prospectus Supplement (insofar as
such diskette
is consistent with such Annexes A-1, A-2, A-3, A-4, A-5 and B) and
the following
sections of the Prospectus Supplement (to the extent they relate to
the Seller
or the Mortgage Loans and exclusive of any statements in such
sections that
purport to summarize the servicing and administration provisions of
the Pooling
and Servicing Agreement): "Summary of Prospectus
Supplement--Relevant
Parties--Mortgage Loan Sellers," "Summary of Prospectus
Supplement--The
Underlying Mortgage Loans and the Mortgaged Real Properties," "Risk
Factors--Risks Related to the Underlying Mortgage Loans," and
"Description of
the Mortgage
12
Pool." The "Specified Portions" of the Memorandum shall consist of
the Specified
Portions of the Prospectus Supplement and "Summary of the Offering
Memorandum--Relevant Parties--Mortgage Loan Sellers".
(e) The certificate of corporate existence and by-laws of the
Seller,
and a certificate of corporate existence of the Seller issued by
the Office of
the Comptroller of the Currency not earlier than sixty (60) days
prior to the
Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be
from in-house counsel, outside counsel or a combination thereof),
relating to
certain corporate and enforceability matters and reasonably
satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing
Date and
addressed to the Purchaser, the Trustee, the Underwriters, the
Initial
Purchasers and each of the Rating Agencies, together with such
other written
opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser
may reasonably request prior to the sale of the Mortgage Loans by
the Seller to
the Purchaser.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's
pro rata
portion of the aggregate of the following amounts (the Seller's pro
rata portion
to be determined according to the percentage that the PNC BANK
Mortgage Loan
Balance represents as of the Cut-off Date Pool Balance, the exact
amount of
which shall be as set forth in or determined pursuant to the
memorandum of
understanding, to which the Seller and the Purchaser (or affiliates
thereof) are
parties, with respect to the transactions contemplated by this
Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing
Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise
reproducing)
and delivering a preliminary and final Prospectus and Memorandum
relating to the
Certificates; (iii) the initial fees, costs, and expenses of the
Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged
by the
Securities and Exchange Commission for registration of the
Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the
Certificates
so rated; (vi) the fees and disbursements of a firm of certified
public
accountants selected by the Purchaser and the Seller with respect
to numerical
information in respect of the Mortgage Loans and the Certificates
included in
the Prospectus, the Memorandum and any related Computational
Materials or ABS
Term Sheets, including in respect of the cost of obtaining any
"comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket
costs and
expenses in connection with the qualification or exemption of the
Certificates
under state securities or "Blue Sky" laws, including filing fees
and reasonable
fees and disbursements of counsel in connection therewith, in
connection with
the preparation of any "Blue Sky" survey and in connection with a
