Exhibit 4.3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
PNC BANK, NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of July 1, 2002
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TABLE OF CONTENTS
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 Loans.....................................................
Section 9. [Reserved]........................................................
Section 10. Representations and Warranties of Depositor.......................
Section 11. Survival of Certain Representations, Warranties and Covenants.....
Section 12. [Reserved]........................................................
Section 13. Expenses; Recording Costs.........................................
Section 14. Notices...........................................................
Section 15. Examination of Mortgage Files.....................................
Section 16. Successors........................................................
Section 17. Governing Law.....................................................
Section 18. Severability......................................................
Section 19. Further Assurances................................................
Section 20. Counterparts......................................................
Section 21. Treatment as Security Agreement...................................
Section 22. Recordation of Agreement..........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for PNC Bank Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Affidavit of Lost Note
Exhibit C Form of Assignment of Loan Documents
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as of July
1, 2002, is made by and between PNC BANK, NATIONAL ASSOCIATION, a national
banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation (the "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, 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. Depositor intends to deposit the Mortgage Loans and other
assets into 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 Schedule II to LaSalle Bank National
Association as trustee (the "Trustee") or its designee, against receipt by
Seller of a written 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 Master Servicer for inclusion in the Servicer
File (defined below) with a copy delivered to the Trustee for inclusion in the
Mortgage File; provided further, that the Seller shall pay (or cause the related
Borrower to pay) any costs of the assignment or amendment of each letter of
credit described under item (p) required in order for the Master Servicer to
draw on such letter of credit pursuant to the terms of the Pooling and Servicing
Agreement and shall deliver the related assignment or amendment documents within
thirty (30) days after the Closing Date. In addition, prior to such assignment
or amendment of a letter of credit, the Seller will take all necessary steps to
enable the Master Servicer to draw on the related letter of credit pursuant to
the terms of the Pooling and Servicing Agreement, including, if necessary,
drawing on the letter of credit in its own name pursuant to written instructions
to draw from the Master Servicer and upon receipt, immediately remitting the
proceeds of such draw (or causing such proceeds to be remitted) to the Master
Servicer.
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 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,
Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price (as defined herein) 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. The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to $134,919,390.06.
(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 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 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
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 the Servicing Rights Purchase
Agreement, dated as of July 29, 2002, between the Seller and Midland Loan
Services, Inc., 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) 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
prepayment premiums received on or with respect to the Mortgage Loans after the
Cut-off Date, other than any such payments of interest or principal or
prepayment premiums that were due on or prior to the Cut-off Date. Each Mortgage
File shall contain the following documents:
(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 or assignments showing a complete chain
of endorsement or assignment from the Mortgage Loan Originator either in blank
or to the Seller, and further endorsed (at the direction of the Depositor given
pursuant to this Agreement) by the 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 LaSalle Bank National Association, as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CP3, 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 the Seller, in each case in the form submitted for
recording or, if recorded, with evidence of recording indicated thereon;
(c) an original assignment of Mortgage substantially in the form of
Exhibit C hereto (or an alternative form approved by the Depositor) in
recordable form, either in blank or from the Seller (or the Mortgage Loan
Originator) to "LaSalle Bank National Association, as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-CP3;"
(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 the 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), substantially in the form of
Exhibit C hereto (or an alternative form approved by the Depositor) in
recordable form, either in blank or from the Seller (or the Mortgage Loan
Originator) to "LaSalle Bank National Association, as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-CP3;"
(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 the Seller;
(g) an original assignment of any related Security Agreement (if such item
is a document separate from the Mortgage), either in blank or from the Seller
(or the Mortgage Loan Originator) to "LaSalle Bank National Association, as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CP3," 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, 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), 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) certified or other copies of all UCC Financing Statements and
continuation statements which show the filing or recording thereof or copies
thereof in the form submitted for filing or recording sufficient to perfect (and
maintain the perfection of) the security interest held by the Mortgage Loan
Originator (and each assignee prior to the Trustee) in and to the personalty of
the Borrower at the Mortgaged Property, and original UCC assignments in a form
suitable for filing or recording, sufficient to transfer such security interest
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 agreement relating to such other debt, if any,
including any mezzanine loan documents or preferred equity documents;
(n) if any related Lock-Box Agreement or Cash Collateral Account Agreement
is separate from the Mortgage or Loan Agreement, a copy thereof; with respect to
the Cash Collateral Accounts and Lock-Box Accounts, if any, a copy of the UCC-1
financing statements, if any, submitted for filing with respect to the Seller's
security interest in the Cash Collateral Accounts and Lock-Box Accounts and all
funds contained therein (and UCC-2 or UCC-3 financing statement assignments
assigning such security interest to the Trustee on behalf of the
Certificateholders);
(o) an original or counterpart of the Loan Agreement (if separate from the
Mortgage);
(p) the originals of letters of credit, if any, relating to the Mortgage
Loans, and amendments thereto which entitles the Trust to draw thereon;
(q) the original environmental indemnity agreement, if any, related to the
Mortgage Loan;
(r) any related environmental insurance policies and any environmental
guaranty or indemnity agreements or copies thereof;
(s) the original ground lease, if any, and any amendments, modifications
or extensions thereto, and any ground lease estoppel, or a certified copy
thereof;
(t) the original or a copy of any property management agreement;
(u) with respect to a Mortgage Loan secured by a hospitality property, if
any, copies of the related franchise agreement and franchisor comfort letter;
and
(v) any additional documents required to be added to the Mortgage File
pursuant to the Pooling and Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with any
Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy of any of the documents 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), (l) 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 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, the Seller shall deliver, or cause to be delivered, to the Trustee or
its designee a duplicate original or true copy of such document certified by the
applicable public recording or filing office, the applicable title insurance
company or the Seller to be a true and complete duplicate original or copy of
the original thereof submitted for recording or filing.
Notwithstanding the foregoing, in the event that, in connection with any
Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy of any of the documents 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), (l) 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 has
been lost, the delivery requirements of this Agreement shall be deemed to have
been satisfied and such non-delivered document shall be deemed to have been
included in the related Mortgage File if a photocopy of such non-delivered
document (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 or its
designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot deliver
to the Trustee or its designee any UCC-2 or UCC-3 assignment with the filing
information of the UCC-1 financing statement with respect to any Mortgage Loan
being assigned, solely because such UCC-1 financing statement has not been
returned by the public filing office where such UCC-1 financing statement has
been delivered for filing, Seller shall deliver or cause to be delivered to the
Trustee or its designee a photocopy of such UCC-2 or UCC-3 assignment with the
filing information left blank. The Seller, promptly upon receipt of the
applicable filing information of the UCC-1 financing statement being so
assigned, shall deliver or cause to be delivered to the Trustee or its designee
the original UCC-2 or UCC-3 assignment with all appropriate filing information
set forth thereon.
Notwithstanding the foregoing, Seller may, at its sole cost and expense,
engage a third party contractor to prepare or complete in proper form for filing
or recording any and all assignments of Mortgage, assignments of Assignments of
Leases and assignments of UCC financing statements to the Trustee to be
delivered pursuant to clauses (c), (e), (k) and (n) above (collectively, the
"Assignments"), to submit the Assignments for filing and recording, as the case
may be, in the applicable public filing and recording offices and to deliver the
Assignments to the Trustee or its designee as the Assignments (or certified
copies thereof) are received from the applicable filing and recording offices
with evidence of such filing or recording indicated thereon. However, in the
event the Seller engages a third party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of the Seller
pursuant to this Agreement remain binding on the Seller.
Within ten (10) Business Days after the Closing Date, the Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
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 the Seller's possession relating
to such applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, financial statements and any other
information provided by the respective Borrower from time to time, but excluding
any documents and other writings not enumerated in this parenthetical that have
been prepared by the Seller or any of its Affiliates solely for internal
communication) 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.
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 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 Loans in such group of Crossed Loans, the inclusion of the
original or certified copy of such document or instrument in the Mortgage File
for any of such Crossed Loans and the inclusion of a copy of such original or
certified copy in each of the Mortgage Files for the other Crossed Loans in such
group of Crossed 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
Loan.
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 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 documents prepared by Seller or any of its
Affiliates solely for internal uses, 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
Master Servicer via wire transfer for deposit by the Master Servicer into the
Collection Account.
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 the 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 the 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 the 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
the Depositor and the 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 the Seller confirming its representations
and warranties set forth in Section 6 (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, in form acceptable to the Depositor as to various corporate matters
and such other matters as shall be reasonably required by the Depositor.
Such opinion may express its reliance as to factual matters on, among
other things specified in such opinion, the representations and warranties made
herein, and on certificates or other documents furnished by officers of Seller.
In rendering the opinions expressed above, such counsel may limit such
opinions to matters governed by the laws of the State of New York and the United
States and shall not be required to express any opinion with respect to the
registration or qualification of the Certificates under any applicable state or
federal securities laws.
Such counsel shall state that, although such counsel has not specifically
considered the possible applicability to Seller of any other laws, regulations,
judgments, orders or decrees, no facts have been disclosed to such counsel that
cause such counsel to conclude that any other consent, approval or action is
required;
(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 the Seller and its Affiliates as are
reasonably requested by the Depositor in order for the 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 the
Depositor as contemplated herein.
(c) The 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) The Seller shall have delivered to the Trustee, on or before the
Closing Date, five 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
the 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. The Seller shall reasonably cooperate with
the Trustee and the Special Servicer in connection with any additional powers or
revisions thereto that are requested by such parties.
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 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) The 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 of association, as amended, or other organizational documents;
(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 the Depositor to realize on
the Mortgage Loans.
(iv) Seller is solvent and the sale of 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 creditors.
(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 (and
each agreement and 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 (and each agreement and 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 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) The consideration received by Seller upon the sale of the
Mortgage Loans constitutes fair consideration and reasonably equivalent
value for such 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 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.
(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 the Depositor
hereunder except for the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2 and
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 and
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.
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 any Certificateholder, the Master Servicer, the Special Servicer or the
Trustee discovers or receives notice: of a breach of any of the representations
or warranties made by the Seller with respect to the Mortgage Loans (subject to
the exceptions to such representations and warranties set forth in the Exception
Report), as of the date hereof in Section 6(a)(xii) or as of the Closing Date
pursuant to Section 4(b)(iii) (a "Breach"); or 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" (including the "Defects"
described below) in the related Mortgage File), such party shall give notice to
the Master Servicer, the Special Servicer, the Trustee and the Rating Agencies.
If the Master Servicer or the Special Servicer determines that such Breach or
Defect materially and adversely affects the value of any Mortgage Loan or REO
Loan or the interests of the Holders of any Class of Certificates, it shall give
prompt written notice of such Breach or Defect to the Depositor, the Trustee,
the Master Servicer, the Special Servicer and the Seller and shall request that
the Seller not later than the earlier of 90 days from the receipt by the Seller
of such notice or discovery by the Seller of such Breach or Defect (subject to
the second succeeding paragraph, the "Initial Resolution Period"), (i) cure such
Breach or Defect 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 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 Master Servicer for deposit
into the 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) the
Seller has commenced and is diligently proceeding with the cure of such material
Breach or material Defect within the Initial Resolution Period and (iv) the
Seller has delivered to the Rating Agencies 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 the 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 the 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 Master Servicer, the 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, the Seller shall have the option to either repurchase
the related Mortgage Loan at the applicable Purchase Price or pay such costs and
expenses. Except as provided in the proviso to the immediately preceding
sentence, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller shall be deemed to have cured such Breach
in all respects. With respect to 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 related date of substitution
shall be part of the Trust Fund; and (C) scheduled payments of principal and
interest due with respect to such Qualified Substitute Mortgage Loan(s) on or
prior to the related date of substitution shall not be part of the Trust Fund,
and the Seller shall be entitled to receive such payments promptly following
receipt by the Master Servicer or 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 "Defect" and to be conclusively presumed to materially and
adversely affect the interests of the Holders of a Class of Certificates and the
value of a Mortgage Loan or REO Loan: (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 paragraph (i) of the definition
of Mortgage File; (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 and a certificate stating that the original
intervening assignments were sent for recordation; or (e) the absence from the
Servicer File of any required original letter of credit (as required in the
provisos to Section 1 hereof), provided that such Defect may be cured by any
substitute letter of credit or cash reserve or (f) the absence from the Mortgage
File of an original or copy of any required ground lease. In addition, the
Seller shall cure any Defect described in clause (b), (c), (e) or (f) of the
immediately preceding sentence as required in Section 2.02(b) of the Pooling and
Servicing Agreement.
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
to materially and adversely affect the interests of the Holders of a Class of
Certificates therein and the Initial Resolution Period for the affected Mortgage
Loan shall be 90 days following the earlier of the 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 the 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 Breach or Defect is not capable of being so corrected or cured with
such period, then the Seller shall purchase 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 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 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 Loan in the Mortgage Group for purposes of the above
provisions, and the Seller will be required to repurchase or substitute for such
other Crossed Loan(s) in the related Mortgage Group in accordance with the
provisions of this Section 7 unless such other Crossed Loans satisfy the Crossed
Loan Repurchase Criteria (as defined in the Pooling and Servicing Agreement) and
the Seller can satisfy all other criteria for substitution or repurchase of the
affected Mortgage Loan set forth in the Pooling and Servicing Agreement. In the
event that one or more of such other Crossed Loans satisfy the Crossed Loan
Repurchase Criteria, the Seller may elect either to repurchase or substitute for
only the affected Crossed Loan as to which the related Breach or Defect exists
or to repurchase or substitute for all of the Crossed Loans in the related
Mortgage 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). 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, the Seller will not be
obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) the 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) such 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, together with 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 therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property which 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 the 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 the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds, shall
promptly release the related Mortgage File and Servicer File or cause them to be
released, to Seller and shall execute and deliver such instruments of transfer
or assignment as shall be necessary to vest in the 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.
It is understood and agreed that the obligations of the Seller set forth
in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
constitute the sole remedies available to the Depositor and its successors and
assigns respecting any Breach or Defect affecting such Mortgage Loan.
Section 8. Crossed Loans. With respect to any Crossed Loan conveyed
hereunder, to the extent that the Seller repurchases or substitutes for an
affected Crossed Loan in the manner prescribed above while the Trustee continues
to hold any related Crossed Loans, the Seller and the 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 Loan repurchased or substituted by the Seller, on the one hand,
and any related Crossed Loans still held by the Trustee, on the other, would no
longer be cross-defaulted or cross-collateralized with one another; provided,
that the Seller shall have furnished to the Trustee, at its expense, with an
Opinion of Counsel that such modification shall not cause an Adverse REMIC
Event; provided, further, that if such Opinion of Counsel cannot be furnished,
the Seller and the Depositor hereby agree that such repurchase or substitution
of only the affected Crossed Loans, notwithstanding anything to the contrary
herein, shall not be permitted. Any reserve or other cash collateral or letters
of credit securing the Crossed 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. [Reserved]
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 the consent of or notice to, or any 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 11 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. [Reserved]
Section 13. Expenses; Recording Costs. Seller agrees to reimburse the
Trustee or its designee all recording and filing fees incurred by the Trustee or
its designee in connection with the recording or filing of the Mortgage Loan
Documents listed in Section 3 of this Agreement. In the event Seller elects to
engage a third party contractor to prepare, complete, file and record
Assignments with respect to Mortgage Loans as provided in Section 3, Seller
shall contract directly with such contractor and shall be responsible for such
contractor's compensation and reimbursement of recording and filing fees and
other reimbursable expenses pursuant to their agreement.
Section 14. Notices. All communications hereunder will be in writing and
effective only upon receipt, and, (a) if sent to Depositor, will be mailed,
delivered or telecopied and confirmed to it at Credit Suisse First Boston
Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx XxXxxxxxx, Esq.,
Compliance Department, Telecopy No.: (000) 000-0000; and (b) if sent to Seller,
will be mailed, delivered or telecopied to it at PNC Bank, National Association,
00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries), and X.X.
Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for communications by United
States mail), Attention: Xxxxx Xxxx, Telecopy No.: (000) 000-0000, with a copy
to PNC Bank, National Association, One PNC Plaza, 21st Floor, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx Xxxxx, Esq., Telecopy
No.: (000) 000-0000, or in the case of any such party, to such other address or
telecopy number as such party may hereafter furnish to the other party by like
notice.
Section 15. Examination of Mortgage Files. Upon reasonable notice, Seller,
prior to the Closing Date, will make the Mortgage Files available to Depositor
or its agent for examination during normal business hours at Seller's offices or
such other location as shall otherwise be agreed upon by Depositor and Seller.
The fact that Depositor or its agent has conducted or has failed to conduct any
partial or complete examination of the Mortgage Files shall not affect the
rights of Depositor or the Trustee (for the benefit of the Certificateholders)
to demand cure, repurchase, or other relief as provided herein.
Section 16. Successors. This Agreement shall inure to the benefit of and
shall be binding upon Seller and Depositor and their respective successors,
permitted assigns and legal representatives, and nothing expressed in this
Agreement is intended or shall be construed to give any other Person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such Persons and for the benefit of no other Person; it being
understood that (a) the indemnities of Seller contained in that certain
Indemnification Agreement dated July 18, 2002 among Seller, Depositor and the
Underwriters, subject to all limitations therein contained, shall also be for
the benefit of the officers and directors of Depositor, the Underwriters and the
Initial Purchaser and any person or persons who control Depositor, the
Underwriters and the Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in Section 7 of this
Agreement, may be assigned to the Trustee, for benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to such
rights of Depositor hereunder, provided that the Trustee shall have no right to
further assign such rights to any other Person. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assign because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS TO
BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO CHOICE
OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
Section 19. Further Assurances. Depositor and Seller agree to execute and
deliver such instruments and take such actions as the other parties may, from
time to time, reasonably request in order to effectuate the purpose and to carry
out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in counterparts
(and by each of the parties hereto on different counterparts), each of which
when so executed and delivered will be an original, and all of which together
will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by Seller to
Depositor as provided in this Agreement be, and be construed as, a sale of the
Mortgage Loans by Seller to Depositor. It is, further, not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by Seller
to Depositor to secure a debt or other obligation of Seller. However, in the
event that, notwithstanding the intent of the parties, the Mortgage Loans are
held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within the
meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant from
Seller to Depositor a security interest in and to all of Seller's right, title,
and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and primary mortgage insurance policies
identified on the Mortgage Loan Schedule, including all replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
(i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and such
other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and acknowledgments,
receipts, confirmations from persons holding such property, shall be deemed to
be notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents of, or persons holding for (as
applicable), Depositor or its assignee for the purpose of perfecting such
security interest under applicable law. The Seller at the direction of the
Depositor or its assignee, shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans and the proceeds
thereof, such security interest would be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. In connection herewith, Depositor and its assignee shall have
all of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage Loan
Purchase Agreement to be duly executed and delivered as the date first above
written.
PNC BANK, NATIONAL ASSOCIATION,
as Seller
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIESCORP.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated by
reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as of
July 1, 2002, between PNC Bank, National Association (the "Seller") and Credit
Suisse First Boston Mortgage Securities Corp. (the "Depositor"). Capitalized
terms used herein without definition have the meanings given them in or by
reference in the Agreement or, if not defined in the Agreement, in the Pooling
and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
"Assignments" shall have the meaning given such term in Section 3 of this
Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase Agreement,
dated July 18, 2002, between Depositor and the Initial Purchaser.
"Certificates" means each class of the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2002-CP3.
"Closing" shall have the meaning given that term in Section 2 of this
Agreement.
"Closing Date" means July 29, 2002.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Loan" means any Mortgage Loan which is cross-defaulted and
cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, the applicable Due Date for each Mortgage Loan
occurring in July 2002.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with respect
to each Mortgaged Property delivered to Seller in connection with the related
Mortgage, if any.
"Exception Report" means exceptions with respect to the representations
and warranties made by the Seller as to the Mortgage Loans in Section 6(a)(xii)
and under the written certificate described in Section 4(b)(iii), which
exceptions are set forth in Schedule V attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston Corporation.
"Initial Resolution Period" shall have the meaning given such term in
Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the Mortgage Loan Originator and the Borrower,
pursuant to which such Mortgage Loan was made.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the first proviso in Section 1).
"Mortgage Group" shall have the meaning given such term in Section 7 of
the Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section 2 of
the Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in Recital
II of this Agreement.
"Mortgage Loans" means the mortgage loans to be sold to Depositor pursuant
to this Agreement, specifically identified in Schedule II to the Agreement.
"Offered Certificates" means the Class A-1, Class A-2, Class A-3, Class B,
Class C and Class D Certificates.
"Offering Circular" means the confidential offering circular dated July
18, 2002, describing certain classes of the Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of July 1,
2002, among the Depositor, Midland Loan Services, Inc., as Master Servicer,
Clarion Partners, LLC, as Special Servicer, the Trustee and ABN AMRO Bank N.V.,
as Fiscal Agent.
"Primary Collateral" means with respect to any Crossed Loan, that portion
of the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
"Prospectus" means the Prospectus of the Depositor, dated May 2, 2002.
"Prospectus Supplement" means the Prospectus Supplement, dated July 18,
2002, relating to the Offered Certificates.
"Servicer File" means, collectively, all documents, records and copies
pertaining to a Mortgage Loan which are required to be included in the related
Servicer File pursuant to Section 3 (subject to the first proviso in Section 1).
"Trustee" shall have the meaning given such term in Section 1 of this
Agreement.
"Underwriters" means Credit Suisse First Boston Corporation, Xxxxxx
Xxxxxxx & Co. Incorporated and PNC Capital Markets, Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated July 18,
2002, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE FOR PNC BANK LOANS
ASSET_NO Property Name Address City State Zip Code
-------- ------------- ------- ---- ----- --------
940924492 Brookstone Park Housing Development 220 - 000 Xxxx Xxxxxx Xxxxxx XX 00000
940925863 NBR Marketplace 0000 00XX Xxxxxx Xxxx Xxxxxxxxx XX 00000
940927396 North Charleston Center 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
940927430 Golden Mile Shopping Center 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
940927460 Bay Medical Plaza 000 Xxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
940927819 Villas of Loiret Phase III 0000-0000 Xxxxx Xx. & Xxxxxx XX 00000
15902-15904 W. 91st Terr.
940928668 La Xxxxx Centre 14621-14821 and 14646-14820 Xxx Xxxx XX 00000
Xxxxx Xxx Xxxx Xxxxxxxxx
940928689 0000 Xxxxxxx Xxxxxx Xxxxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
940929000 Colonial Village at Xxxxxxx Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
940929033 Xxxxxxxxx-Xxxxxxx Building 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
940929095 Riverside-Clybourne Xxxxxx 0000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
940929097 Highland Plaza Shopping Center 00000 Xxxx 000XX Xxxxxx Xxxxxxxx Xxxx XX 00000
940929101 The Bristol Place Apartments 00000 Xxxx Xxxx Xxxxxxx XX 00000
940929126 Chapel Ridge-El Dorado Phase I 000 Xxxxxxxxx Xxxx Xx Xxxxxx XX 00000
940929127 Chapel Ridge-El Dorado Phase II 000 Xxxxxxxxx Xxxx Xx Xxxxxx XX 00000
940929217 Orange Villa Shopping Center 2050 AND 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000
940929221 Xxxxx Edge Apartments 0000 Xxxx Xxxx Xxxxxx Xxx Xxxxxx XX 00000
940929261 Orange Villa Shopping Center - Phase II 0000-0000 Xxxxxx Xxxxxx Xxxxxx XX 00000
940929366 Brea/Imperial Building 000 Xxxx Xxxxxxxx Xxxxxxx Xxxx XX 00000
940929514 La Villa Apartments 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
940929532 Ski Lodge Apartments 0000 00XX Xxxxxx Xxxx Xxxxxxxxxx XX 00000
940929533 Colonial Village at Hillcrest 0000 Xxxxxxxxx Xxxx Xxxxxx XX 00000
940929534 XxXxxxx Place Apartments 0000 XxXxxxx Xxxxx Xxxxx X Xxxxxxxxxx XX 00000
Rate Net Mortgage Rate Original Balance Cutoff Balance New RemTerm Maturity Date ARD Original Amort Term
7.31% 7.1575% $ 408,000.00 $ 406,405.87 175 2/1/2017 N/A 360
7.00% 6.8675% $ 5,850,000.00 $ 5,821,945.66 114 1/1/2012 N/A 360
7.37% 7.1975% $ 11,212,000.00 $11,212,000.00 120 7/1/2012 N/A 300
7.25% 7.0975% $ 2,600,000.00 $ 2,584,493.27 112 11/1/2011 N/A 360
7.40% 7.2475% $ 4,900,000.00 $ 4,896,290.06 119 6/1/2012 N/A 360
7.18% 7.0775% $ 1,800,000.00 $ 1,798,576.17 105 4/1/2011 N/A 360
7.76% 7.6075% $ 5,150,000.00 $ 5,139,821.05 118 5/1/2012 N/A 300
7.69% 7.5375% $ 6,300,000.00 $ 6,287,765.08 117 4/1/2012 N/A 360
7.37% 7.2475% $ 4,250,000.00 $ 4,250,000.00 119 6/1/2012 N/A 360
7.40% 7.2775% $ 2,210,000.00 $ 2,208,326.74 119 6/1/2012 N/A 360
7.40% 7.2775% $ 2,500,000.00 $ 2,498,107.17 119 6/1/2012 N/A 360
7.28% 7.1775% $ 5,000,000.00 $ 4,989,313.92 117 4/1/2012 N/A 360
6.99% 6.8675% $ 22,200,000.00 $22,135,143.49 116 3/1/2012 N/A 360
7.40% 7.2475% $ 1,069,000.00 $ 1,069,000.00 180 7/1/2017 N/A 360
7.40% 7.2475% $ 1,334,000.00 $ 1,334,000.00 180 7/1/2017 N/A 360
7.56% 7.4575% $ 5,320,000.00 $ 5,313,297.60 118 5/1/2012 N/A 360
7.35% 7.2475% $ 6,420,000.00 $ 6,411,469.69 118 5/1/2012 N/A 360
7.86% 7.7575% $ 6,128,000.00 $ 6,120,858.86 118 5/1/2012 N/A 360
7.48% 7.3475% $ 2,088,000.00 $ 2,088,000.00 120 7/1/2012 N/A 360
7.36% 7.1575% $ 1,700,000.00 $ 1,700,000.00 120 7/1/2012 N/A 360
7.37% 7.2475% $ 7,640,000.00 $ 7,640,000.00 119 6/1/2012 N/A 360
7.37% 7.2475% $ 4,200,000.00 $ 4,200,000.00 119 6/1/2012 N/A 360
7.37% 7.2475% $ 14,900,000.00 $14,900,000.00 119 6/1/2012 N/A 360
New Remaining Amort Monthly Payment Units/SF Interest Calculation Primary Servicing Fee Master Servicing Fee
355 $ 2,799.90 12 Actual/360 0.1300% 0.0200%
354 $ 38,920.20 79784 Actual/360 0.1100% 0.0200%
300 $ 81,909.94 229239 Actual/360 0.1500% 0.0200%
352 $ 17,736.58 13433 Actual/360 0.1300% 0.0200%
359 $ 33,926.61 36119 Actual/360 0.1300% 0.0200%
359 $ 12,193.83 16 Actual/360 0.0800% 0.0200%
298 $ 38,933.25 107540 Actual/360 0.1300% 0.0200%
357 $ 44,873.04 107154 Actual/360 0.1300% 0.0200%
360 $ 29,339.21 152 Actual/360 0.1000% 0.0200%
359 $ 15,301.59 22723 Actual/360 0.1000% 0.0200%
359 $ 17,309.50 25775 Actual/360 0.1000% 0.0200%
357 $ 34,210.61 36912 Actual/360 0.0800% 0.0200%
356 $ 147,548.09 390 Actual/360 0.1000% 0.0200%
360 $ 7,401.54 64 Actual/360 0.1300% 0.0200%
360 9,236.35 64 Actual/360 0.1300% 0.0200%
358 $ 37,417.03 33952 Actual/360 0.0800% 0.0200%
358 $ 44,232.01 210 Actual/360 0.0800% 0.0200%
358 $ 44,368.47 50336 Actual/360 0.0800% 0.0200%
360 $ 14,571.01 11660 Actual/360 0.1100% 0.0200%
360 $ 11,724.10 44 Actual/360 0.1800% 0.0200%
360 $ 52,741.55 304 Actual/360 0.1000% 0.0200%
360 $ 28,994.05 104 Actual/360 0.1000% 0.0200%
360 $ 102,859.83 468 Actual/360 0.1000% 0.0200%
Trustee Fee Due Date ARD Lockout/Defeasance Earthquake Insurance Environmental Insurance Ground Lease Letter of Credit
0.0025% 1 No Lock/176_0%/4 No Yes No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/59_YM1/57_0%/4 No No No No
0.0025% 1 No Lock/102_0%/4 No Yes No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/59_YM1/57_0%/4 No No No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/115_0%/5 Yes Yes No No
0.0025% 1 No Lock/115_0%/5 Yes Yes No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/35_YM1/81_0%/4 No No No No
0.0025% 1 No Lock/176_0%/4 No Yes No No
0.0025% 1 No Lock/176_0%/4 No Yes No Yes
0.0025% 1 No Lock/59_YM1/54_0%/7 No No No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/59_YM1/54_0%/7 No No No No
0.0025% 1 No Lock/116_0%/4 No Yes No No
0.0025% 1 No Lock/116_0%/4 No Yes No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/116_0%/4 No No No No
0.0025% 1 No Lock/116_0%/4 No No No No
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
NONE
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
NONE
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties contained in
Exhibit A corresponding to the roman numerals listed below:
Exceptions to Paragraph (xxiii)
The following Mortgage Loans do not have insurance policies in place with
respect to acts of terrorism:
940925863 NBR MARKETPLACE
940927396 NORTH CHARLESTON CENTER
940929101 BRISTOL PLACE APARTMENTS
Exceptions to Paragraph (xxvii)
The following Mortgage Loans are covered by a single Secured Creditor Impairment
Policy with an aggregate loss payable under the policy subject to a limit of 35%
of the cumulative original principal balances of such Mortgage Loans.
940924492 BROOKSTONE HOUSING
940927819 VILLAS OF LOIRET
940929033 XXXXXXXXX-XXXXXXX BUILDING
940929095 RIVERSIDE-CLYBOURNE OFFICE
940929126 CHAPEL RIDGE APARTMENTS PHASE I
940929127 CHAPEL RIDGE APARTMENTS PHASE II
940929366 BREA/IMPERIAL BUILDING
940929514 LA VILLA APARTMENTS
Exceptions to Paragraph (xxviii)
None of the Mortgage Loans provides for acceleration of indebtedness if, without
the consent of the holder of the related Mortgage Loan, a majority interest in
the related Borrower is transferred by virtue of an involuntary change in
ownership resulting from a death or physical or mental disability or requires
the related Borrower to pay the holder's fees and costs associated therewith.
Exceptions to Paragraph (xxxv)
940929000 COLONIAL VILLAGE XXXXXXX and 940929533 COLONIAL VILLAGE HILLCREST do
not have appraisals satisfying the requirements of FIRREA.
Exceptions to Paragraph (xxxvi)
The following two Mortgage Loans are encumbered by subordinate mortgages:
940929127 CHAPEL RIDGE-PHASE II -$300,000 secured loan held by Arkansas
Development Finance Authority.
940924492 BROOKSTONE HOUSING - $25,000 secured loan held by Neighborhood Housing
Services of Oklahoma City.
Exceptions to Paragraph (xxxviii)
None of the Mortgage Loans prohibits the related borrower from mortgaging or
otherwise encumbering any controlling equity interest in the borrower.
The following two Mortgage Loans are encumbered by subordinate mortgages:
940929127 CHAPEL RIDGE-PHASE II -$300,000 secured loan held by Arkansas
Development Finance Authority.
940924492 BROOKSTONE HOUSING - $25,000 secured loan held by Neighborhood Housing
Services of Oklahoma City.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean, except
where otherwise expressly set forth below, the actual state of knowledge of the
Seller or any servicer acting on its behalf regarding the matters referred to,
in each case without having conducted any independent inquiry or due diligence
with respect to such matters and without any actual or implied obligation to
make such inquiry or perform such due diligence, other than making such inquiry
or performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of the Seller. Wherever there is
a reference to receipt by, or possession of, the Seller of any information or
documents, or to any action taken by the Seller or not taken by the Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either the Seller or any servicer acting on its behalf.
The Seller hereby represents and warrants, subject to the exceptions
set forth in Schedule V, with respect to the Mortgage Loans that as of the date
hereinbelow specified or, if no such date is specified, as of the date of this
Agreement:
(i) Immediately prior to the sale, transfer and assignment to
the Depositor, no Note or Mortgage was subject to any assignment
(other than assignments which show a complete chain of assignment to
the Seller), participation or pledge, and the Seller had good and
marketable title to, and was the sole owner of, the related Mortgage
Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association,
savings bank, commercial bank, credit union, or insurance
company, which is supervised and examined by a Federal or
State authority, or by a mortgagee approved by the Secretary
of Housing and Urban Development pursuant to Sections 203 and
211 of the National Housing Act (any of the foregoing,
including the Seller, a "Qualified Originator"); or
(B) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"),
then:
(1) such Mortgage Loan was underwritten in
accordance with standards established by a Qualified
Originator, using application forms and related credit
documents approved by the Qualified Originator;
(2) the Qualified Originator approved each
application and related credit documents before a
commitment by the Non-Qualified Originator was issued,
and no such commitment was issued until the Qualified
Originator agreed to fund such Mortgage Loan;
(3) the Mortgage Loan was originated by the
Non-Qualified Originator pursuant to an ongoing,
standing relationship with the Qualified Originator; and
(4) the closing documents for the Mortgage Loan
were prepared on forms approved by the Qualified
Originator, and, pursuant to the Non-Qualified
Originator's ongoing, standing relationship with the
Qualified Originator, either:
(a) such closing documents reflect the
Qualified Originator as the original mortgagee,
and such Mortgage Loan was actually funded by the
Qualified Originator at the closing thereof;
(b) such closing documents reflect the
Non-Qualified Originator as the original
mortgagee, but include assignment documents
executed by the Non-Qualified Originator in favor
of the Qualified Originator at the time of the
closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign
to the Non-Qualified Originator, and the Mortgage
Loan was funded initially by the Non-Qualified
Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator; or
(c) such closing documents reflect the
Non-Qualified Originator as the original
mortgagee, but include assignment documents
executed by the Non-Qualified Originator in favor
of the Qualified Originator at the time of the
closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign
to the Non-Qualified Originator, and the Mortgage
Loan was funded initially by the Qualified
Originator at the closing thereof and then
acquired by the Qualified Originator from such
Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign
and transfer such Mortgage Loan and the assignment to the Depositor
constitutes a legal, valid and binding assignment of such Mortgage
Loan;
(iv) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or any other interests
or security interests of any nature encumbering such Mortgage Loan,
except for interests in servicing rights created or granted under
the Pooling and Servicing Agreement, subservicing agreements and/or
servicing rights purchase agreements being executed and delivered in
connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents
and such other due diligence as a reasonably prudent commercial
mortgage lender would deem appropriate, the borrower, lessee and/or
operator was in possession of all licenses, permits, and
authorizations then required for use of the Mortgaged Property which
were valid and in full force and effect as of the origination date
and to Seller's actual knowledge, such licenses, permits and
authorizations are still valid and in full force and effect;
(vi) Each related Note, Mortgage, assignment of leases (if
any) and other agreement executed by or for the benefit of the
related borrower, any guarantor or their successors or assigns in
connection with such Mortgage Loan is the legal, valid and binding
obligation of the related borrower, enforceable in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); and there is no right of offset,
rescission, abatement or diminution or valid defense or counterclaim
available to the related borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in
equity or at law);
(vii) The Mortgage File contains an Assignment of Leases,
either as a separate instrument or incorporated into the related
Mortgage, which creates a valid first priority collateral assignment
of, or a valid first priority lien or security interest in, certain
rights under the related lease or leases, subject only to a license
granted to the related borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or
leases, including the right to operate the related leased property,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); no person other than the related
borrower owns any interest in any payments due under such lease or
leases that is superior to or of equal priority with the lender's
interest therein;
(viii) Each related assignment of Mortgage from the Seller to
the Depositor and related assignment of the Assignment of Leases, if
the Assignment of Leases is a separate document from the Mortgage,
is in recordable form, and such assignments and any assignment of
any other agreement executed by or for the benefit of the related
borrower, any guarantor or their successors or assigns in connection
with such Mortgage Loan from the Seller to the Depositor constitutes
the legal, valid and binding assignment from the Seller to the
Depositor, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting the enforcement of
creditors' rights or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity
or at law);
(ix) Since origination (a) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded in whole or in part
and (b) each related Mortgaged Property has not been released, in
whole or in part, from the lien of the related Mortgage in any
manner which materially interferes with the security intended to be
provided by such Mortgage and since May 10, 2002, no waiver,
consent, modification, assumption, alteration, satisfaction,
cancellation, subordination or rescission which changes the terms
of, or the security for, the Mortgage Loan in any material respect
has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first
lien on the related Mortgaged Property (subject to Permitted
Encumbrances (as defined below)), except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
and such Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the lien of the
related Mortgage, except those which are insured against by a
lender's title insurance policy (as described below). A UCC
financing statement has been filed and/or recorded (or sent for
filing or recording) in all places necessary to perfect a valid
security interest in the personal property necessary to operate the
Mortgaged Property as currently operated; and such security interest
is a first priority security interest, subject to any prior purchase
money security interest in such personal property, any personal
property leases applicable to such personal property and any other
security interest in such personal property which do not,
individually or in the aggregate, materially interfere with the
security intended to be provided for such Mortgage Loan. Any
security agreement, chattel mortgage or equivalent document related
to and delivered in connection with the Mortgage Loan establishes
and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law). In the case of any Mortgage Loan
secured by a hotel, the related loan documents contain such
provisions as are necessary and UCC Financing Statements have been
filed as necessary, in each case, to perfect a valid first priority
security interest in the related operating revenues with respect to
such Mortgaged Property. Notwithstanding the foregoing, no
representation is made as to the perfection of any security interest
in rent, operating revenues or other personal property to the extent
that possession or control of such items or actions other than the
filing of Uniform Commercial Code financing statements are required
in order to effect such perfection;
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the
related Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material
representations and warranties made by the related borrower in the
related Mortgage Loan Documents are not true in any material
respect;
(xiii) The lien of each related Mortgage is a first priority
lien on the fee or leasehold interest of the related borrower in the
principal amount of such Mortgage Loan or allocated loan amount of
the portions of the Mortgaged Property covered thereby (as set forth
in the related Mortgage) after all advances of principal and is
insured by an ALTA lender's title insurance policy (except that if
such policy is yet to be issued, such insurance may be evidenced by
a "marked up" pro forma policy or title commitment in either case
marked as binding and countersigned by the title company or its
authorized agent, either on its face or by an acknowledged closing
instruction or escrow letter), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and
assigns (as sole insured) as to such lien, subject only to (a) the
lien of current real property taxes, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties,
(b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or
in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the borrower's ability to pay its obligations when
they become due or the value of the Mortgaged Property and (c) the
exceptions (general and specific) and exclusions set forth in such
policy, none of which, individually or in the aggregate, materially
interferes with the current general use of the Mortgaged Property or
materially interferes with the security intended to be provided by
such Mortgage or with the related borrower's ability to pay its
obligations when they become due or the value of the Mortgaged
Property (items (a), (b) and (c) collectively, "Permitted
Encumbrances") and with respect to each Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate,
materially interfere with the security intended to be provided by
the related Mortgage, the current principal use of the related
Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage
Loan; the premium for such policy was paid in full; such policy (or
if it is yet to be issued, the coverage to be afforded thereby) is
issued by a title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is located (unless
such state is Iowa) and is assignable (with the related Mortgage
Loan) to the Depositor and the Trustee without the consent of or any
notification to the insurer, and is in full force and effect upon
the consummation of the transactions contemplated by the Mortgage
Loan Purchase Agreement; no claims have been made under such policy
and the Seller has not undertaken any action or omitted to take any
action, and has no knowledge of any such act or omission, which
would impair or diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances
thereunder, and no future advances have been made which are not
reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of
the Mortgage Loan, as of the later of the date of origination of
such Mortgage Loan or the most recent inspection of the related
Mortgaged Property by the Seller, as applicable, and to the
knowledge of Seller as of the date hereof, each related Mortgaged
Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as
security for the Mortgage Loan (normal wear and tear excepted). If
any of the inspection or engineering reports referred to above in
this Paragraph (xv) revealed any immediate repair items, then one of
the following is true: (a) the repairs and/or maintenance necessary
to correct such condition have been completed in all material
respects; (b) an escrow of funds is required or a letter of credit
was obtained in an amount reasonably estimated to be sufficient to
complete the repairs and/or maintenance necessary to correct such
condition; or (c) the reasonable estimation at the time of
origination of the Mortgage Loan of the cost to complete the repairs
and/or maintenance necessary to correct such condition represented
no more than the greater of (i) $50,000 and (ii) 2% of the value of
the related Mortgaged Property as reflected in an appraisal
conducted in connection with the origination of the subject Mortgage
Loan; as of the closing date for each Mortgage Loan and, to the
Seller's knowledge, as of the date hereof, there is no proceeding
pending for the total or partial condemnation of such Mortgaged
Property that would have a material adverse effect on the use or
value of the Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the
originator of the Mortgage Loan inspected or caused to be inspected
each related Mortgaged Property within three months of origination
of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any
other contingent interest feature or a negative amortization feature
other than the ARD Loans which may have negative amortization from
and after the Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and neither the
Mortgage Loan nor the related Mortgage Loan Documents create or
grant an equity participation to the Seller or any other party;
(xix) The Mortgage Rate (exclusive of any default interest,
late charges, or prepayment premiums) of such Mortgage Loan complied
as of the date of origination with, or was exempt from, applicable
state or federal laws, regulations and other requirements pertaining
to usury. Except to the extent any noncompliance did not materially
and adversely affect the value of the related Mortgaged Property,
the security provided by the Mortgage or the related borrower's
operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without
limitation, truth-in-lending, real estate settlement procedures,
equal credit opportunity or disclosure laws, applicable to such
Mortgage Loan have been complied with as of the date of origination
of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination
process of any Mortgage Loan and the origination, servicing and
collection of each Mortgage Loan is in all respects legal, proper
and prudent in accordance with customary commercial mortgage lending
standards, and no other person has been granted or conveyed the
right to service the Mortgage Loans or receive any consideration in
connection therewith, except as provided in the Pooling and
Servicing Agreement or any permitted subservicing agreements;
(xxi) All taxes and governmental assessments that became due
and owing prior to the date hereof with respect to each related
Mortgaged Property and that are or may become a lien of priority
equal to or higher than the lien of the related Mortgage have been
paid or an escrow of funds has been established and such escrow
(including all escrow payments required to be made prior to the
delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to
each Mortgage Loan are in the possession, or under the control, of
the Seller or its agent and there are no deficiencies (subject to
any applicable grace or cure periods) in connection therewith and
all such escrows and deposits are being conveyed by the Seller to
the Depositor and identified as such with appropriate detail, and
with respect to any disbursements made from such escrows, any
requirements for the disbursement of any such escrows have been
complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire
and extended perils insurance policy, issued by an insurer meeting
the requirements of the Pooling and Servicing Agreement, in an
amount not less than the lesser of the principal amount of the
related Mortgage Loan and the replacement cost (with no deduction
for physical depreciation) and not less than the amount necessary to
avoid the operation of any co-insurance provisions with respect to
the related Mortgaged Property; each related Mortgaged Property is
also covered by business interruption or rental loss insurance which
covers a period of not less than 12 months and comprehensive general
liability insurance in amounts generally required by prudent
commercial mortgage lenders for similar properties; all Mortgaged
Properties in California or in a seismic zone 4 or 5 have had a
seismic assessment done and earthquake insurance was obtained to the
extent any such Mortgaged Property has a probable maximum loss in
the event of an earthquake of greater than twenty percent (20%) of
the replacement value of the related improvements; if the Mortgaged
Property for any Mortgage Loan is located within Florida or within
25 miles of the coast of North Carolina, South Carolina, Georgia,
Alabama, Mississippi, Louisiana or Texas, then, such Mortgaged
Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on the related Mortgaged Property; the
Mortgaged Properties securing all of the Mortgage Loans having a
Stated Principal Balance in excess of $3,000,000 have, as of the
date hereof, insurance policies in place with respect to acts of
terrorism or damage related thereto (excluding acts involving
nuclear, biological or chemical terrorism), except any such Mortgage
Loans that are listed on Schedule V hereto. All premiums on such
insurance policies required to be paid as of the date hereof have
been paid; such insurance policies or the related insurance
certificates require prior notice to the insured of reduction in
coverage, termination or cancellation, and no such notice has been
received by the Seller; such insurance names the lender under the
Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates the related
borrower to maintain all such insurance and, at such borrower's
failure to do so, authorizes the lender to maintain such insurance
at the borrower's cost and expense and to seek reimbursement
therefor from such borrower;
(xxiv) There is no monetary default, breach, violation or
event of acceleration existing under the related Mortgage Loan. To
the Seller's knowledge, there is no (a) non-monetary default,
breach, violation or event of acceleration existing under the
related Mortgage Loan or (b) event (other than payments due but not
yet delinquent) which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration, which default,
breach, violation or event of acceleration, in the case of either
(a) or (b) would materially and adversely affect the use or value of
the Mortgage Loan or the related Mortgaged Property; provided,
however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise
covered by any other representation or warranty made by the Seller
in any of paragraphs (xiii), (xxi), (xxv), (xxvii), (xxix), and
(xxxi) of this Exhibit A-1;
(xxv) No Mortgage Loan has been more than 30 days delinquent
in making required payments since origination and as of the Cut-off
Date no Mortgage Loan is 30 or more days delinquent in making
required payments;
(xxvi) (a) Each related Mortgage contains provisions so as to
render the rights and remedies of the holder thereof adequate for
the practical realization against the Mortgaged Property of the
principal benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure or, subject to
applicable state law requirements, appointment of a receiver, and
(b) there is no exemption available to the borrower which would
interfere with such right to foreclose, except, in the case of
either (a) or (b), as the enforcement of the Mortgage may be limited
by bankruptcy, insolvency, reorganization, moratorium, redemption or
other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
No borrower is a debtor in a state or federal bankruptcy or
insolvency proceeding;
(xxvii) At origination, each borrower represented and
warranted in all material respects that to its knowledge, except as
set forth in certain environmental reports and, except as commonly
used in the operation and maintenance of properties of similar kind
and nature to the Mortgaged Property, in accordance with prudent
management practices and applicable law, and in a manner that does
not result in any contamination of the Mortgaged Property, it has
not used, caused or permitted to exist and will not use, cause or
permit to exist on the related Mortgaged Property any hazardous
materials in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives or policies governing
the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related borrower agreed to
indemnify, defend and hold the mortgagee and its successors and
assigns harmless from and against losses, liabilities, damages,
injuries, penalties, fines, expenses, and claims of any kind
whatsoever (including attorneys' fees and costs) paid, incurred or
suffered by, or asserted against, any such party resulting from a
breach of the foregoing representations, warranties or covenants
given by the borrower in connection with such Mortgage Loan. A Phase
I environmental report and with respect to certain Mortgage Loans, a
Phase II environmental report was conducted by a reputable
independent environmental consulting firm in connection with such
Mortgage Loan, which report did not indicate any material
non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance
or material existence of hazardous materials was indicated in any
such report, then at least one of the following statements is true:
(A) funds reasonably estimated to be sufficient to cover the cost to
cure any material non-compliance with applicable environmental laws
or material existence of hazardous materials have been escrowed by
the related borrower and held by the related mortgagee; (B) if the
environmental report recommended an operations and maintenance plan,
but not any material expenditure of funds, an operations and
maintenance plan has been required to be obtained by the related
borrower; (C) the environmental condition identified in the related
environmental report was remediated or abated in all material
respects prior to the date hereof; (D) a no further action or
closure letter was obtained from the applicable governmental
regulatory authority (or the environmental issue affecting the
related Mortgaged Property was otherwise listed by such governmental
authority as "closed"); (E) such conditions or circumstances
identified in the Phase I environmental report were investigated
further and based upon such additional investigation, an
environmental consultant recommended no further investigation or
remediation; (F) a party unrelated to the borrower with financial
resources reasonably estimated to be adequate to cure the condition
or circumstance provided a guaranty or indemnity to the related
borrower to cover the costs of any required investigation, testing,
monitoring or remediation; (G) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater
than two percent (2%) of the outstanding principal balance of the
related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related Mortgage File.
Notwithstanding the preceding sentence, with respect to certain
Mortgage Loans with an original principal balance of less than
$3,000,000, no environmental report may have been obtained, but (in
such cases where a Phase I environmental report was not obtained) a
lender's secured creditor impairment environmental insurance policy
was obtained with respect to each such Mortgage Loan and is a part
of the related Mortgage File. Each of such environmental insurance
policies is in full force and effect, is in an amount not less than
the 100% of the balance of the related Mortgage Loan, has a term
extending not less than 5 years after the maturity date of the
related Mortgage Loan, the premiums for such policies have been paid
in full and the Trustee is named as an insured under each of such
policies, the Seller has delivered to the insurer all environmental
reports in its possession. To the Seller's knowledge, in reliance on
such environmental reports and except as set forth in such
environmental reports, each Mortgaged Property is in material
compliance with all applicable federal, state and local
environmental laws, and to the Seller's knowledge, no notice of
violation of such laws has been issued by any governmental agency or
authority, except, in all cases, as indicated in such environmental
reports or other documents previously provided to the Rating
Agencies; and the Seller has not taken any action which would cause
the Mortgaged Property to not be in compliance with all federal,
state and local environmental laws pertaining to environmental
hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without the consent of the holder of the Mortgage
(and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent), the related
Mortgaged Property is directly or indirectly transferred or sold,
and (2) except with respect to transfers of certain interests in the
related borrower to persons already holding interests in the
borrower, their family members, affiliated companies and other
estate planning related transfers that satisfy certain criteria
specified in the related Mortgage (which criteria is consistent with
the practices of prudent commercial mortgage lenders) or any
transfers in connection with the death or disability of owners of
the borrower, each Mortgage Loan also contains the provisions for
the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without the consent of the holder of the
Mortgage, (and the Mortgage requires the mortgagor to pay all fees
and expenses associated with obtaining such consent) a majority
interest in the related borrower is directly or indirectly
transferred or sold;
(xxix) All improvements included in the related appraisal are
within the boundaries of the related Mortgaged Property, except for
encroachments onto adjoining parcels for which the Seller has
obtained title insurance against losses arising therefrom or that do
not materially and adversely affect the use or value of such
Mortgaged Property. No improvements on adjoining parcels encroach
onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged
Property, the security provided by the Mortgage, the current use of
the Mortgaged Property, or the related borrower's operations at the
Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which
is set forth in the Mortgage Loan Schedule attached as an exhibit to
this Mortgage Loan Purchase Agreement is complete and accurate in
all material respects as of the dates of the information set forth
therein (or, if not set forth therein, as of the Cut-Off Date);
(xxxi) If any Mortgage Loan is secured by the leasehold estate
of the related borrower, the related Mortgage also encumbers the
related lessor's fee interest in such Mortgaged Property;
(xxxii) With respect to any Mortgage Loan where all or a
material portion of the estate of the related borrower therein is a
leasehold estate, but the related Mortgage also encumbers the
related lessor's fee interest in such Mortgaged Property: (a) such
lien on the related fee interest is evidenced by the related
Mortgage, (b) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or
encumbrance upon such fee interest, (c) upon the occurrence of a
default under the terms of such Mortgage by the related borrower,
any right of the related lessor to receive notice of, and to cure,
such default granted to such lessor under any agreement binding upon
the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (d) the
related lessor has agreed in a writing included in the related
Mortgage File that the related ground lease may not be amended or
modified without the prior written consent of the lender and that
any such action without such consent is not binding on the lender,
its successors or assigns, and (e) the related ground lease is in
full force and effect, and the Seller has no actual knowledge that
any default beyond applicable notice and grace periods has occurred
or that there is any existing condition which, but for the passage
of time or giving of notice, would result in a default under the
terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized by or cross-defaulted with such Mortgage Loans
are being transferred to the Depositor;
(xxxiv) Neither Seller nor any affiliate thereof has any
obligation to make any capital contribution to any borrower under a
Mortgage Loan, other than contributions made on or prior to the date
hereof;
(xxxv) (1) The Mortgage Loan is directly secured by a Mortgage
on a commercial property or multifamily residential property, and
(2) the fair market value of such real property, as evidenced by an
appraisal satisfying the requirements of FIRREA conducted within 12
months of the origination of the Mortgage Loan, was at least equal
to 80% of the principal amount of the Mortgage Loan (a) at
origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at
a time when the Mortgage Loan was not in default or default with
respect thereto was not reasonably foreseeable, the date of the last
such modification) or (b) at the date hereof; provided that the fair
market value of the real property must first be reduced by (A) the
amount of any lien on the real property interest that is senior to
the Mortgage Loan and (B) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan,
in which event the computation described in (a) and (b) shall be
made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity
interests held by the Seller or any mezzanine debt related to such
Mortgaged Property, except as set forth in the Prospectus
Supplement, this Exhibit A or in the Exception Report to this
Mortgage Loan Purchase Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection
with each Mortgage Loan having an original principal balance in
excess of $5,000,000 require that the related borrower be a
single-purpose entity (for this purpose, "single-purpose entity"
shall mean an entity, other than an individual, having
organizational documents which provide substantially to the effect
that it is formed or organized solely for the purpose of owning and
operating one or more Mortgaged Properties, is prohibited from
engaging in any business unrelated to such property and the related
Mortgage Loan, does not have any assets other than those related to
its interest in the related Mortgaged Property or its financing, or
any indebtedness other than as permitted under the related Mortgage
Loan). To the Seller's actual knowledge, each borrower has fully
complied with the requirements of the related Mortgage Note and
Mortgage and borrower's organizational documents regarding
Single-Purpose Entity status;
(xxxviii) Each Mortgage Loan prohibits the related borrower
from mortgaging or otherwise encumbering the Mortgaged Property, or
any controlling equity interest in the borrower, without the prior
written consent of the mortgagee or the satisfaction of debt service
coverage or similar criteria specified in the Note or Mortgage which
would be acceptable to a reasonably prudent commercial mortgage
lender, and, except in connection with trade debt and equipment
financings in the ordinary course of borrower's business, from
carrying any additional indebtedness, except, in each case, liens
contested in accordance with the terms of the Mortgage Loans or,
with respect to each Mortgage Loan having an original principal
balance of less than $4,000,000, any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan documents
that it shall remain in material compliance with all material
licenses, permits and other legal requirements necessary and
required to conduct its business;
(xl) Each Mortgaged Property (a) is located on or adjacent to
a dedicated road, or has access to an irrevocable easement
permitting ingress and egress, (b) is served by public utilities and
services generally available in the surrounding community or
otherwise appropriate for the use in which the Mortgaged Property is
currently being utilized, and (c) constitutes one or more separate
tax parcels or is covered by an endorsement with respect to the
matters described in (a), (b) or (c) under the related title
insurance policy (or the binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey
of the related Mortgaged Property, if any portion of the
improvements on the Mortgaged Property is located in an area
identified by the Federal Emergency Management Agency or the
Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is
available, the terms of the Mortgage Loan require the borrower to
maintain flood insurance, or at such borrower's failure to do so,
authorizes the Lender to maintain such insurance at the cost and
expense of the borrower and such insurance is in full force and
effect in an amount not less than the lesser of (1) the replacement
cost of the material improvements on such Mortgaged Property, (2)
the balance of the Mortgage Loan and (3) the maximum amount of
insurance available under the applicable National Flood Insurance
Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust,
a trustee, duly qualified under applicable law to serve as such,
currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law or may be substituted
in accordance with applicable law by the related mortgagee, and
except in connection with a trustee's sale after a default by the
related borrower, no fees are payable to such trustee, and such fees
payable are payable by the borrower;
(xliii) RESERVED;
(xliv) Except as disclosed in the Exception Report to this
Mortgage Loan Purchase Agreement, to the knowledge of the Seller as
of the date hereof, there was no pending action, suit or proceeding,
arbitration or governmental investigation against any borrower or
Mortgaged Property, an adverse outcome of which would materially and
adversely affect such borrower's ability to perform under the
related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the
related borrower (other than mezzanine debt and the acquisition of
preferred equity interests by the preferred equity interest holder,
as disclosed in the Prospectus Supplement), and no funds have, to
the Seller's knowledge, been received from any person other than, or
on behalf of, the related borrower, for, or on account of, payments
due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each
holder of the Note was authorized to transact and do business in the
jurisdiction in which each related Mortgaged Property is located, or
the failure to be so authorized did not materially and adversely
affect the enforceability of such Mortgage Loan;
(xlvii) All collateral for the Mortgage Loans is being
transferred as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Exception Report to this
Mortgage Loan Purchase Agreement or the Prospectus Supplement with
respect to the Crossed Loans and Multiple Property Loans, no
Mortgage Loan requires the lender to release any portion of the
Mortgaged Property from the lien of the related Mortgage except upon
(a) payment in full or defeasance of the related Mortgage Loan, (b)
the satisfaction of certain legal and underwriting requirements that
would be customary for prudent commercial mortgage lenders, which in
all events include payment of a release price at least 125% of the
appraised value of the property to be released or of the allocated
loan amount of such property or (c) releases of unimproved
out-parcels or (d) releases of other portions of the Mortgaged
Property which will not have a material adverse effect on the use or
value of the collateral for the related Mortgage Loan and which were
given no value in the appraisal of the Mortgaged Property or of that
portion of the Mortgaged Property used to calculate the
loan-to-value ratio of the Mortgaged Property for underwriting
purposes. No release or partial release of any Mortgaged Property,
or any portion thereof, expressly permitted or required pursuant to
the terms of any Mortgage Loan would constitute a significant
modification of the related Mortgage Loan under Treas. Reg. Section
1.860G-2(b)(2);
(xlix) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (a) the repair or restoration of
all or part of the related Mortgaged Property, with, in the case of
all casualty losses or takings in excess of a specified amount or
percentage of the related loan amount that a prudent commercial
lender would deem satisfactory and acceptable, the lender (or a
trustee appointed by it) having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in any case
where a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (b) to the payment of the
outstanding principal balance of such Mortgage Loan together with
any accrued interest thereon;
(l) (l) Each Form UCC-1 financing statement, if any, filed
with respect to personal property constituting a part of the related
Mortgaged Property and each Form UCC-2 or UCC-3 assignment, if any,
of such financing statement to the Seller was, and each Form UCC-3
assignment, if any, of such financing statement in blank which the
Trustee or its designee is authorized to complete (but for the
insertion of the name of the assignee and any related filing
information which is not yet available to the Seller) is, in
suitable form for filing in the filing office in which such
financing statement was filed;
(li) To the Seller's knowledge, (a) each commercial lease
covering more than 10% (20% in the case of any Mortgage Loan having
an original principal balance less than $2,500,000) of the net
leaseable area of the related Mortgaged Property is in full force
and effect and (b) there exists no default under any such commercial
lease either by the lessee thereunder or by the related borrower
that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due
diligence considered reasonable by prudent commercial mortgage
lenders, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure
or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the value of the related
Mortgaged Property. With respect to properties with a Stated
Principal Balance of over $10,000,000, if the related Mortgaged
Property does not so comply, to the extent the Seller is aware of
such non-compliance, it has required the related borrower to obtain
law and ordinance insurance coverage in amounts customarily required
by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulation (as defined herein)
Section 1.860G-2(f)(2) that treats a defective obligation as a
qualified mortgage or any substantially similar successor
provision), the related Mortgaged Property, if acquired by a REMIC
in connection with the default or imminent default of such Mortgage
Loan would constitute "foreclosure property" within the meaning of
Code Section 860G(a)(8) and all Prepayment Premiums and Yield
Maintenance Charges constitute "customary prepayment penalties"
within the meaning of Treasury Regulation Section 1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (i) the Mortgage Loan
cannot be defeased within two years after the Closing Date, (ii) the
borrower can pledge only United States government securities in an
amount sufficient to make all scheduled payments under the Mortgage
Loan when due, (iii) the borrower is required to provide independent
certified public accountant's certification that the collateral is
sufficient to make such payments, (iv) the loan may be required to
be assumed by a single-purpose entity designated by the holder of
the Mortgage Loan, (v) the borrower is required to provide an
opinion of counsel that the trustee has a perfected security
interest in such collateral prior to any other claim or interest,
(vi) the borrower is required to pay all Rating Agency fees
associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to,
accountant's fees and opinions of counsel, (vii) with respect to any
Significant Loan (as defined in the Pooling and Servicing
Agreement), the borrower is required to provide an opinion of
counsel that such defeasance will not cause any REMIC created under
the Pooling and Servicing Agreement to fail to qualify as a REMIC
for federal or applicable state tax purposes and (viii) with respect
to any Significant Loan (as defined in the Pooling and Servicing
Agreement), the borrower must obtain confirmation from each Rating
Agency that the defeasance would not result in such Rating Agency's
withdrawal, downgrade or qualification of the then current rating of
any class of Certificates rated by such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan
provide that the related borrower thereunder shall be liable to the
Seller for any losses incurred by the Seller due to (i) the
misapplication or misappropriation of rents, insurance proceeds or
condemnation awards, (ii) any willful act of material waste, (iii)
any breach of the environmental covenants contained in the related
Mortgage Loan Documents, and (iv) fraud by the related borrower;
provided that, with respect to clause (iii) of this sentence, an
indemnification against losses related to such violations or
environmental insurance shall satisfy such requirement;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (i)
its Mortgage Rate will increase by no less than two percentage
points in connection with the passage of its Anticipated Repayment
Date and so long as the Mortgage Loan is an asset of the Trust Fund;
(ii) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (iii) no later than
the related Anticipated Repayment Date, if it has not previously
done so, the related borrower is required to enter into a "lockbox
agreement" whereby all revenue from the related Mortgaged Property
shall be deposited directly into a designated account controlled by
the Master Servicer; and (iv) any cash flow from the related
Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such
net cash flow is in excess of the Monthly Payment payable therefrom,
be net of budgeted and discretionary (servicer approved) capital
expenditures;
(lvii) Except as disclosed in the Prospectus Supplement, no
Mortgage Loan, and no group of Mortgage Loans made to the same
borrower and to borrowers that are Affiliates, accounted for more
than 5.0% of the aggregate of the Stated Principal Balances of all
of the Mortgage Loans and all of the mortgage loans sold to the
Depositor by Column Financial Inc. ("Column") pursuant to that
certain Mortgage Loan Purchase Agreement dated as of July 1, 2002
between the Depositor, Column and PNC Bank, National Association (in
its capacity as servicer of certain mortgage loans) as of the
Cut-Off Date;
(lviii) Except for the Mortgage Loans with an initial
principal balance less than $3,000,000, in connection with its
origination or acquisition of each Mortgage Loan, the Seller
obtained an appraisal of the related Mortgaged Property, which
appraisal is signed by an appraiser, who, to the Seller's actual
knowledge, had no interest, direct or indirect, in the borrower, the
Mortgaged Property or in any loan made on the security of the
Mortgaged Property, and whose compensation was not affected by the
approval or disapproval of the Mortgage Loan; and
(lix) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in
the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
__________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of PNC Bank, National Association
("PNC Bank");
2. that PNC Bank is the owner and holder of a mortgage loan in the
original principal amount of $____________ secured by a mortgage (the
"Mortgage") on the premises known as ____________ ________________ located in
________________;
3. (a) that PNC Bank , after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note and
believes that said original note has been lost, misfiled, misplaced or destroyed
due to a clerical error:
a note in the original sum of $____________ made by ______________,
to PNC Bank, under date of ______________ (the "Note");
4. that the Note is now owned and held by PNC Bank;
5. that the Note has not been paid off, satisfied, assigned, transferred,
encumbered, endorsed, pledged, hypothecated, or otherwise disposed of and that
the original Note has been either lost, misfiled, misplaced or destroyed;
6. that no other person, firm, corporation or other entity has any right,
title, interest or claim in the Note except PNC Bank; and
7. upon assignment of the Note by PNC Bank to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") and subsequent assignment by the
Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2002-CP3 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by PNC Bank to the Trustee) PNC
Bank covenants and agrees (a) promptly to deliver to the Trustee the original
Note if it is subsequently found, and (b) to indemnify and hold harmless the
Trustee and its successors and assigns from and against any and all costs,
expenses and monetary losses arising as a result of PNC Bank's failure to
deliver said original Note to the Trustee.
PNC BANK, NATIONAL ASSOCIATION,
as Seller
By: ____________________________________
Name:
Title:
Sworn to before me this
day of July [ ], 2002
EXHIBIT C
FORM OF
ASSIGNMENT OF LOAN DOCUMENTS
PNC BANK, NATIONAL ASSOCIATION
(Assignor)
to
__________________________________
(Assignee)
Dated: _____________, ____
Location:
THIS INSTRUMENT WAS DRAFTED BY, AND
UPON RECORDING SHOULD BE RETURNED TO:
____________________________________
____________________________________
____________________________________
Attention: ___________________________
Loan No.:
Loan Assignment - General Form
Last Revised July 1, 2002
THIS ASSIGNMENT OF LOAN DOCUMENTS ("Assignment") is made as of
____________________________, ______, by PNC BANK, NATIONAL ASSOCIATION
("Assignor"), whose mailing address is 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxx 00000, in favor of ____________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
("Assignee") whose mailing address is _________________________________________.
RECITALS:
A. Assignor is the legal and equitable owner and holder of that certain
Promissory Note dated [___], made by [____], [____] ("Borrower"), in the
original principal amount of [____] and No/100 Dollars ($[____]) (the "Note").
B. Assignor is also the legal and equitable owner and holder of certain
instruments securing the Note, including, without limitation, the following:
(i) the [____], Security Agreement, Assignment of Leases and Rents
and Fixture Filing (the "Security Instrument") dated [____], executed by
Borrower in favor of Assignor, filed for record _____________, ______, in
the Office of the Register of Deeds, Recorder of Deeds or County Clerk, as
applicable, in and for [____] County, [____] (the "Recording Office") in
Book _____________________, at Page ___________________, encumbering
certain improved real property (the "Mortgaged Property") situated in said
County, as more particularly described on Exhibit A attached hereto and
made a part hereof; and
(ii) the Assignment of Leases and Rents (the "Assignment of Leases")
dated [____], executed by Borrower in favor of Assignor, filed for record
_____________, ______, in the Recording Office in Book
_____________________, at Page ___________________.
C. Assignor and Assignee desire that the Security Instrument, the
Assignment of Leases, the Note, the Other Security Documents (as defined in the
Security Instrument), and all other documents executed in connection with the
Loan (including, without limitation any indemnities or guaranties of the Loan,
if any) (all such documents being collectively referred to herein as the "Loan
Documents") be assigned to Assignee.
D. Assignor has simultaneously herewith endorsed the Note to Assignee.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged:
1. Assignor does hereby sell, assign, grant, transfer, set over and convey
to Assignee, its successors and assigns, all of the Loan Documents (and all of
Assignor's right, title and interest therein), including without limitation, the
Security Instrument, the Assignment of Leases, the Note and the Other Security
Documents.
2. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
3. This Assignment shall be governed by and construed in accordance with
the laws of the state in which the Mortgaged Property is located.
IN WITNESS WHEREOF, the undersigned has executed this Assignment of Loan
Documents to be effective as of the day and year first above mentioned.
ASSIGNOR
PNC BANK, NATIONAL ASSOCIATION
By: ____________________________________
________________________________
Xxxxxxxxx Xxxxxx, Vice President
STATE OF )
) ss.:
COUNTY OF )
On this _____ day of _____________, 2002, before me the undersigned, a
NOTARY PUBLIC OF _______________, personally appeared ______________________, as
________ of PNC Bank, National Association, a national banking association, who,
I am satisfied, was the maker of the foregoing instrument and who then stated
and acknowledged to me that, as such officer and maker (1) he was authorized to
execute the foregoing instrument on behalf of said company and (2) he executed
said instrument as the act and deed of said company.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal at my office in ____________________ the day and year last above written.
Signature ____________________________
Print Name ____________________________
Residing at ____________________________
____________________________
____________________________
A NOTARY PUBLIC OF _____________________
My Commission expires on _______________
[AFFIX SEAL]
ASSIGNMENT OF LOAN DOCUMENTS
PNC BANK, NATIONAL ASSOCIATION
TO
LaSALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE
RECORD AND RETURN TO:
