EXHIBIT 4.3
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of November 1, 2004
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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 Mortgage Loans.............................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a Defeasance
Section 10. Representations and Warranties of Depositor........................
Section 11. Survival of Certain Representations, Warranties and Covenants......
Section 12. Transaction Expenses...............................................
Section 13. Recording Costs and Expenses.......................................
Section 14. Notices............................................................
Section 15. 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
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 Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of November 1, 2004, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement specified on such
Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Xxxxx
Fargo Bank, N.A. 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 (xvi) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File; and provided, further, that Seller shall pay (or
cause the related Borrower to pay) any costs of the assignment or amendment of
each letter of credit described under said item (xvi) required in order for the
Trustee 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, Seller will take all
necessary steps to enable the applicable Master Servicer to draw on the related
letter of credit on behalf of the Trustee 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
applicable Master Servicer and upon receipt, immediately remitting the proceeds
of such draw (or causing such proceeds to be remitted) to the applicable 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 Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 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 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" shall
be the price mutually agreed upon as such in writing between Depositor and
Seller.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, subject to any related servicing rights
of any applicable Master Servicer under, and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all
property of Seller described in Section 21(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or 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. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(i) 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 Seller, and further
endorsed (at the direction of Depositor given pursuant to this Agreement)
by Seller, on its face or by allonge attached thereto, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of Xxxxx Fargo Bank, N.A., as trustee for the registered
Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C4, without
recourse, representation or warranty, express or implied";
(ii) 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, certified
copies or copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C4";
(iv) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof
from the Mortgage Loan Originator of the Loan to Seller, in each case in
the form submitted for recording or, if recorded, with evidence of
recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator), either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C4";
(vi) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the
Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from Seller (or the
Mortgage Loan Originator) either in blank or to "Xxxxx Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2004-C4," which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective under applicable law);
(viii) 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;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, the original or a copy of a binding written commitment (which
may be a pro forma or specimen title insurance policy which has been
accepted or approved in writing by the related title insurance company) or
interim binder that is marked as binding and countersigned by the title
company, insuring the priority of the Mortgage as a first lien on the
related Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording
(including the filing number or other similar filing information)
acceptable to the Trustee (including, without limitation, evidence of such
filed or recorded UCC Financing Statement as shown on a written UCC search
report from a reputable search firm, such as Corporation Service Company,
CT Corporation System and the like or printouts of on-line confirmations
from such UCC filing or recording offices or authorized agents thereof),
sufficient to perfect (and maintain the perfection of) the security
interest held by the Mortgage Loan Originator (and each assignee of record
prior to the Trustee) in and to the personalty of the Borrower at the
Mortgaged Property, and original UCC Financing Statement assignments, in a
form suitable for filing or recording, sufficient to assign each such UCC
Financing Statement to the Trustee;
(xii) 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;
(xiii) with respect to any debt of a Borrower or mezzanine borrower
permitted under the related Mortgage Loan, an original or copy of a
subordination agreement, standstill agreement or other intercreditor,
co-lender or similar agreement relating to such other debt, if any,
including any mezzanine loan documents or preferred equity documents, and
a copy of the promissory note relating to such other debt (if such other
debt is also secured by the related Mortgage);
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement and
a copy of the UCC Financing Statements, if any, submitted for filing with
respect to Seller's security interest in the Cash Collateral Accounts and
Lock-Box Accounts and all funds contained therein (together with UCC
Financing Statement assignments in a form suitable for filing or
recording, sufficient to transfer such security interest to the Trustee on
behalf of the Certificateholders);
(xv) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related
Lock-Box Agreement or Cash Collateral Account Agreement (if separate from
the related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon; provided that in connection with the delivery of
the Mortgage File to the Trust, such originals shall be delivered to the
applicable Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies thereof; (xviii)
the original or a copy of the ground lease, ground lease memorandum and
ground lease estoppels, if any, and any amendments, modifications or
extensions thereto, if any, or certified copies thereof;
(xix) the original or copy of any property management agreement;
(xx) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and any applicable transfer/assignment
documents; and
(xxi) a checklist of the documents included in the subject Mortgage
File.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement) and (xii) of the
last sentence of the first paragraph of this Section 3, 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, Seller: (i) shall
deliver, or cause to be delivered, to the Trustee or its designee a duplicate
original or true copy of such document or instrument certified by the applicable
public recording or filing office, the applicable title insurance company or
Seller to be a true and complete duplicate original or copy of the original
thereof submitted for recording or filing; and (ii) shall deliver, or cause to
be delivered, to the Trustee or its designee either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate public recording or filing office to be a true and complete copy of
the original thereof submitted for recording or filing), with evidence of
recording or filing thereon, within 120 days after the Closing Date, which
period may be extended up to two times, in each case for an additional period of
45 days (provided that Seller, as certified in writing to the Trustee prior to
each such 45-day extension, is in good faith attempting to obtain from the
appropriate recording or filing office such original or photocopy). Compliance
with this paragraph will satisfy Seller's delivery requirements under this
Section 3 with respect to the subject document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement) and (xii) of the
last sentence of the first paragraph of this Section 3, with evidence of
recording or filing thereon for any other reason, including without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document or instrument shall be deemed to have been included in
the related Mortgage File if a photocopy of such non-delivered document or
instrument (with evidence of recording or filing thereon and certified by the
appropriate recording or filing office to be a true and complete copy of the
original thereof as filed or recorded) is delivered to the Trustee or its
designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, Seller shall so notify the Trustee or its
designee and shall not be in breach of its obligations with respect to such
delivery, provided that Seller promptly forwards such UCC Financing Statement to
the Trustee or its designee upon its return, together with the related original
UCC Financing Statement assignment in a form appropriate for filing or
recording.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, 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 (iii), (v) and
(xi) of the last sentence of the first paragraph of this Section 3
(collectively, the "Assignments"), to submit those Assignments for filing and
recording, as the case may be, in the applicable public filing and recording
offices and to deliver those Assignments to the Trustee or its designee as those
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 Seller engages a third-party contractor as
contemplated in the immediately preceding sentence, the rights, duties and
obligations of Seller pursuant to this Agreement remain binding on Seller; and,
if Seller does not engage a third party as contemplated by the immediately
preceding sentence, then Seller will still be liable for recording and filing
fees and expenses of the Assignments as and to the extent contemplated by
Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, financial statements, operating
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 Seller or any of its Affiliates
solely for internal credit analysis or other internal uses or any
attorney-client privileged 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 Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
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 credit analysis or other internal
uses or any attorney-client privileged communication, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor, as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to Depositor
and are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations and
warranties set forth in Section 6(a) (subject to the exceptions set forth
in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by Depositor in order for Depositor to perform any of
it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by Depositor
as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
Seller, any Mortgage Loan Documents required to be recorded and any intervening
assignments with evidence of recording thereon that are required to be included
in the Mortgage Files. Seller shall reasonably cooperate with the Trustee 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) 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, investigation, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith) and to perform all transactions of Seller
contemplated by this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith). Seller has duly
authorized the execution, delivery and performance of this Agreement (and
all agreements and documents executed and delivered by Seller in
connection herewith), and has duly executed and delivered this Agreement
(and all agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and document
executed and delivered by Seller in connection herewith), assuming due
authorization, execution and delivery thereof by each other party thereto,
constitutes the legal, valid and binding obligation of Seller enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization, receivership,
moratorium or other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
articles or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result in a
breach of, or constitute a default or result in an acceleration under, any
agreement or instrument to which Seller is now a party or by which it (or
any of its properties) is bound if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for Seller to
perform its duties and obligations under this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of Depositor to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to Depositor hereunder
except for (A) the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties
set forth on Schedule V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on Schedule II.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "most recent due date for the subject Replacement Mortgage
Loan on or before the date of substitution"). From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans (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) or, in the case of any Replacement Mortgage Loan,
as of the date of substitution pursuant to Section 6(b) (in any such case, a
"Breach"), or receives notice that (a) any document required to be included in
the Mortgage File related to any Mortgage Loan is not in the Trustee's (or its
designee's) possession within the time period required herein or (b) such
document has not been properly executed or is otherwise defective on its face
(clause (a) and clause (b) each, a "Defect" (which term shall include the
"Defects" detailed in the immediately following paragraph) in the related
Mortgage File), and if such Breach or Defect, as the case may be, materially and
adversely affects, or is deemed hereby to materially and adversely affect, the
value of any Mortgage Loan or any successor REO Loan with respect thereto or the
interests of the Holders of any Class of Certificates (in which case such Breach
or Defect shall be a "Material Breach" or a "Material Defect," as applicable),
then Seller shall, upon written request of Depositor, the Trustee, the
applicable Master Servicer or the applicable Special Servicer, not later than 90
days after the receipt by Seller of such written request (subject to the second
succeeding paragraph, the "Initial Resolution Period"): (i) cure such 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, in accordance with the Pooling and Servicing
Agreement, one or more Qualified Substitute Mortgage Loans (as defined in the
Pooling and Servicing Agreement) for such affected Mortgage Loan (provided that
in no event shall any substitution occur later than the second anniversary of
the Closing Date) and pay the applicable Master Servicer for deposit into the
applicable Collection Account any Substitution Shortfall Amount (as defined in
the Pooling and Servicing Agreement) in connection therewith; provided, however,
that if (i) such Material Breach or Material Defect is capable of being cured
but not within the Initial Resolution Period, (ii) such Material Breach or
Material Defect does not cause the related Mortgage Loan not to be a "qualified
mortgage" (within the meaning of Section 860G(a)(3) of the Code), (iii) Seller
has commenced and is diligently proceeding with the cure of such Material Breach
or Material Defect within the Initial Resolution Period and (iv) Seller has
delivered to the Rating Agencies, the applicable Master Servicer, the applicable
Special Servicer and the Trustee an Officer's Certificate that describes the
reasons that the cure was not effected within the Initial Resolution Period and
the actions that it proposes to take to effect the cure and that states that it
anticipates the cure will be effected within the additional 90-day period, then
Seller shall have an additional 90 days to cure such Material Defect or Material
Breach. If any Breach pertains to a representation or warranty that the related
Mortgage Loan Documents or any particular Mortgage Loan Document requires the
related Borrower to bear the costs and expenses associated with any particular
action or matter under such Mortgage Loan Document(s), then Seller shall cure
such Breach within the Initial Resolution Period by reimbursing the Trust Fund
(by wire transfer of immediately available funds) the reasonable amount of any
such costs and expenses incurred by the applicable Master Servicer, the
applicable Special Servicer, the Trustee or the Trust Fund that are the basis of
such Breach and have not been reimbursed by the related Borrower; provided,
however, that in the event any such costs and expenses exceed $10,000, Seller
shall have the option to either repurchase the related Mortgage Loan at the
applicable Purchase Price or pay such costs and expenses. Except as provided in
the proviso to the immediately preceding sentence, Seller shall remit the amount
of such costs and expenses and upon its making such remittance, Seller shall be
deemed to have cured such Breach in all respects. With respect to any repurchase
of a Mortgage Loan hereunder or any substitution of one or more Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the Determination Date for
such month; (B) scheduled payments of principal and interest due with respect to
the Qualified Substitute Mortgage Loan(s) after the month of substitution, and
scheduled payments of principal and interest due with respect to each Mortgage
Loan being repurchased or replaced after the related Cut-off Date and received
by the applicable Master Servicer or the applicable Special Servicer on behalf
of the Trust on or prior to the related date of repurchase or substitution,
shall be part of the Trust Fund; and (C) scheduled payments of principal and
interest due with respect to such Qualified Substitute Mortgage Loan(s) during
or prior to the month of substitution, and scheduled payments of principal and
interest due with respect to each Mortgage Loan being repurchased or replaced
and received by the applicable Master Servicer or the applicable Special
Servicer on behalf of the Trust after the related date of repurchase or
substitution, shall not be part of the Trust Fund, and Seller (or, if
applicable, any person effecting the related repurchase or substitution in the
place of Seller) shall be entitled to receive such payments promptly following
receipt by the applicable Master Servicer or the applicable Special Servicer, as
applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) of the last
sentence of the first paragraph of Section 3 hereof; (d) the absence from the
Mortgage File of any intervening assignments required to create an effective
assignment to the Trustee on behalf of the Trust, unless there is included in
the Mortgage File a certified copy of the intervening assignment as recorded or
as sent for recordation, together with a certificate stating that the original
intervening assignment was sent for recordation, or a copy of the intervening
assignment and the related recording information; or (e) the absence from the
Servicer File of any required original letter of credit, provided that such
Defect may be cured by any substitute letter of credit or cash reserve on behalf
of the related Borrower; or (f) the absence from the Mortgage File of the
original or a copy of any required ground lease. In addition, 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.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless such other Crossed Mortgage Loans satisfy the Crossed
Mortgage Loan Repurchase Criteria (as defined in the Pooling and Servicing
Agreement) and Seller can satisfy all other criteria for substitution or
repurchase of the affected Mortgage Loan(s) set forth in the Pooling and
Servicing Agreement. In the event that one or more of such other Crossed
Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase Criteria, Seller may
elect either to repurchase or substitute for only the affected Crossed Mortgage
Loan as to which the related Breach or Defect exists or to repurchase or
substitute for all of the Crossed Mortgage Loans in the related Mortgage Group.
Seller shall be responsible for the cost of any Appraisal required to be
obtained by the applicable Master Servicer to determine if the Crossed Mortgage
Loan Repurchase Criteria have been satisfied, so long as the scope and cost of
such Appraisal has been approved by Seller (such approval not to be unreasonably
withheld). For purposes of this paragraph, a "Mortgage Group" is any group of
Mortgage Loans identified as a Mortgage Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the 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) Seller provides an opinion of counsel to the effect that such
partial release would not cause an Adverse REMIC Event (as defined in the
Pooling and Servicing Agreement) to occur, (ii) Seller pays (or causes to be
paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, receipt of the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans(s)), 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 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 Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to modify upon
such repurchase or substitution, the related Mortgage Loan Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event; and provided, further, that
if such Opinion of Counsel cannot be furnished, Seller and Depositor hereby
agree that such repurchase or substitution of only the affected Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not be permitted.
Any reserve or other cash collateral or letters of credit securing the subject
Crossed Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by
Seller of the parenthetical in representation (xxviii)(1) set forth on Exhibit A
hereto. Seller shall pay all reasonable costs and expenses associated with a
defeasance of a Mortgage Loan to the extent such costs and expenses have not
been paid by the related Borrower and such Borrower is not required to pay them
under the terms of the related Mortgage Loan Documents in effect on or before
the Closing Date, the payment of which fees shall constitute the sole remedy of
any breach by Seller of representation (liii)(F) set forth on Exhibit A hereto.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Depositor,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 13 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee all recording and filing fees and expenses 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, including
Assignments. 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 of this Agreement, 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 demands, notices and communications
hereunder shall 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, Telecopy No.: (212)
743-4756 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department,
Telecopy No.: (000) 000-0000), or such other address or telecopy number as may
be designated by Depositor to Seller in writing, or (b) if sent to Seller, will
be mailed, delivered or telecopied and confirmed to it at KeyBank National
Association, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Xxxx X. Xxxxxxx, Telecopy No.: (000) 000-0000 (with a copy to Xxxxxx
X. Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, Telecopy No.: (216)
689-5681), or such other address or telecopy number as may be designated by
Seller to Depositor in writing.
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 October 27, 2004, among Seller, Depositor, the
Initial Purchaser and the Underwriters, relating to, among other things,
information regarding the Mortgage Loans in the Prospectus Supplement and the
Offering Circular, 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 party
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 other insurance policies,
identified on the Mortgage Loan Schedule or that constitute 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 clause (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
clauses (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;
(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; and
(e) Seller at the direction of 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 and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
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 of the
date first above written.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
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 November 1, 2004, between KeyBank National Association and Credit Suisse
First Boston Mortgage Securities Corp. 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.
"CBA Mortgage Loan" means any Mortgage Loan that constitutes a "CBA
A Loan" under the Pooling and Servicing Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated October 27, 2004, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2004-C4.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means November 10, 2004.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in November 2004.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Depositor" shall have the meaning given such term in the first
sentence 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 the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of this Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"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 related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"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 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Group" shall have the meaning given such term in Section 7
of this Agreement.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this 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 this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Offering Circular" means the confidential offering circular dated
October 27, 2004, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
November 1, 2004, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage 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 Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated October 18, 2004, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-116258).
"Prospectus Supplement" means the Prospectus Supplement, dated
October 27, 2004, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, Class A-6, Class A-1-A, Class A-J, Class B and
Class C Certificates.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"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).
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse First Boston LLC, KeyBanc Capital
Markets, a division of McDonald Investments Inc. and Xxxxxxx, Sachs & Co.
"Underwriting Agreement" means the Underwriting Agreement, dated
October 27, 2004, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
# Crossed Sub Pool Property Name Address
13 1 Governor's Marketplace Shopping Center 0000-0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx
18 2 Oak Grove Apartments 15401 NE 0xx Xxxxxx
00 0 Xxxxxxxxxx Xxxx Center 000-000 Xxxxxxxxxx Xxxx
24 1 Park Place Promenade 2016-2226 South Xxxxxx Boulevard
27 2 Casa Pacifica Apartments 0000 Xxxxx Xxxx Xxxxxxxxx
29 1 Paradise Shoppes of Prominence Point 000-000 Xxxxxxxxxx Xxxxx Xxxxxxx
31 1 Saucon Valley Square 3679 Route 378
40 2 Blendon Square Townhomes 0000 Xxxxxxxx Xxxxx
42 2 High Vista Apartments 0000 Xxxxxxx Xxxxxx
46 1 Wal Mart Super Center - Jonesboro 0000 Xxxx Xxxxxx Xxxx
47 1 Kietzke Plaza 0000 Xxxxxxx Xxxx
48 2 Chandler Point Apartments 3175 North Price Road
50 1 Xxxxx Xxxxx Crossing 0000 Xxxxx Xxxxxxxxx
52 1 KeyBank Portfolio #2
52a 1 KeyBank - Westwood Branch 00000 Xxxx 00xx Xxxxxx
52b 1 KeyBank - East Smoky Hill Road Branch 20290 East Smoky Xxxx Xxxx
00x 0 XxxXxxx - Xxxxxxxx Branch 0000 Xxxx 000xx Xxxxxx
52d 1 KeyBank - Ketchikan Branch 0000 Xxxxxxx Xxxxxx
61 1 Walgreens Federal Way 28817 Xxxxxxxx Xxxx Xxxxx
00 0 XXXX Xxxxxxxxxx Xxxxxxxx 375 YKK Drive
70 1 American Signature Home 0000 Xxxx Xxxxxxxxxxxxx Xxxxxxxx Xxxxxxxxx
72 1 Sun City RV & Mini Storage 00000 Xxxxx 000xx Xxxxxx
81 1 3 Research Park Office Building 0000 Xxxxxxxx Xxxxxxx
87 0 Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxxx
127 1 Xxxxxx & Xxxxxxx Plaza 3016 North Xxxxxx Road
Zip Property Property
# City County State Code Type Sub-type
13 Xxxxxxxxxxx Xxxx XX 00000 Retail Anchored
00 Xxxxx Xxxxx-Xxxx XX 00000 Multifamily Conventional
20 Xxxxxxxxxx Xxxxxxxxx XX 00000 Retail Anchored
24 Xxxxxxx Xxxxxx XX 00000 Retail Anchored
27 Pacifica Xxx Xxxxx XX 00000 Multifamily Conventional
00 Xxxxxx Xxxxxxxx XX 00000 Retail Anchored
00 Xxxxxxxxx Xxxxxxxxxxx XX 00000 Retail Anchored
00 Xxxxxxx Xxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional
00 Xx Xxxx Xx Xxxx XX 00000 Multifamily Conventional
00 Xxxxxxxxx Xxxxxxxxx XX 00000 Retail Anchored
47 Reno Xxxxxx XX 00000 Retail Anchored
48 Xxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional
00 Xxxxx Xxxxxxxx Xxxxx Xxxxxxx XX 00000 Retail Anchored
52
52a Arvada Xxxxxxxxx XX 00000 Retail Anchored
52b Centennial Xxxxxxxx XX 00000 Retail Anchored
52c Xxxxxxxx Xxxxx XX 00000 Retail Anchored
00x Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Retail Anchored
00 Xxxxxxx Xxx Xxxx XX 00000 Retail Anchored
69 Xxxxxxxxxxx Xxxxxxx XX 00000 Industrial N/A
00 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Retail Anchored
72 Xxxxxx Xxxxxxxx XX 00000 Self Storage N/A
00 Xxxxxxx Xxxxxxx Xxxxxx XX 00000 Xxxxxx Xxxxxxxx
00 Xxxxx Xxxxx XX 00000 Retail Anchored
000 Xxxxxxxx Xxxxxxxx XX 00000 Retail Unanchored
Units/
Sq. Ft./ Percentage of
Mortgage Rooms/ Original Cut-off Initial Maturity Fee/ Year
# Loan Seller Pads Balance Balance (1) Pool Balance Balance Leasehold Built
13 KeyBank National Association 244,932 $20,625,000 $20,625,000 1.81% $20,625,000 Leasehold 2001
18 KeyBank National Association 369 $17,200,000 $17,165,187 1.51% $14,382,971 Fee 1972
20 KeyBank National Association 226,038 $15,250,000 $15,250,000 1.34% $13,277,381 Fee 1988
24 KeyBank National Association 83,902 $12,900,000 $12,889,167 1.13% $10,922,502 Fee 2003
27 KeyBank National Association 102 $11,000,000 $10,977,543 0.96% $9,187,046 Fee 1978
29 KeyBank National Association 78,058 $9,954,300 $9,954,300 0.87% $9,954,300 Fee 2004
31 KeyBank National Association 80,695 $8,850,900 $8,850,900 0.78% $8,850,900 Fee 1999
40 KeyBank National Association 214 $7,000,000 $6,993,634 0.61% $5,871,964 Fee 1970
42 KeyBank National Association 242 $6,500,000 $6,482,214 0.57% $5,028,871 Fee 1975
46 KeyBank National Association 149,704 $6,088,500 $6,088,500 0.53% $6,088,500 Fee 1997
47 KeyBank National Association 104,117 $6,000,000 $5,991,587 0.53% $4,568,066 Fee 1977
48 KeyBank National Association 200 $5,800,000 $5,755,827 0.51% $4,888,367 Fee 1983
50 KeyBank National Association 41,389 $5,365,200 $5,365,200 0.47% $5,365,200 Fee 2003
52 KeyBank National Association $5,055,000 $5,042,974 0.44% $3,887,423
52a 2,796 $1,432,500 $1,429,092 $1,101,629 Fee 2004
52b 2,744 $1,335,000 $1,331,824 $1,026,649 Fee 2003
52c 2,777 $1,327,500 $1,324,342 $1,020,881 Fee 2003
52d 2,613 $960,000 $957,716 $738,264 Fee 2004
61 KeyBank National Association 14,238 $4,260,000 $4,252,583 0.37% $3,635,150 Fee 2004
69 KeyBank National Association 98,150 $3,692,321 $3,688,160 0.32% $2,360,784 Fee 1996
70 KeyBank National Association 52,665 $3,500,000 $3,500,000 0.31% $3,256,620 Fee 2004
72 KeyBank National Association 74,700 $3,400,000 $3,390,651 0.30% $2,622,125 Fee 1985
81 KeyBank National Association 33,600 $2,850,000 $2,847,850 0.25% $2,441,227 Leasehold 2003
87 KeyBank National Association 35,840 $2,650,000 $2,647,745 0.23% $2,240,445 Leasehold 2004
127 KeyBank National Association 20,448 $1,500,000 $1,493,598 0.13% $1,149,679 Fee 1986
Maturity/
Occupancy Date of Cut-off ARD
Year Rate at Occupancy Appraised Date LTV Date LTV Most Recent
# Renovated U/W Rate Value (2) Ratio (1) (3) Ratio (2)(3)(4) NOI
13 N/A 91% 7/26/2004 $33,200,000 62.1% 62.1% $2,384,136
18 2002 96% 7/8/2004 $21,500,000 79.8% 66.9% $1,373,298
20 2000 99% 7/1/2004 $19,500,000 78.2% 68.1% $1,327,966
24 N/A 94% 9/22/2004 $17,000,000 75.8% 64.3% N/A
27 2001 99% 7/30/2004 $14,190,000 77.4% 64.7% $1,054,272
29 N/A 95% 6/29/2004 $14,700,000 67.7% 67.7% N/A
31 N/A 100% 9/1/2004 $14,650,000 60.4% 60.4% $1,140,367
40 2004 89% 8/4/2004 $8,800,000 79.5% 66.7% $521,970
42 N/A 90% 8/16/2004 $8,500,000 76.3% 59.2% $688,650
46 N/A 100% 8/5/2004 $11,250,000 54.1% 54.1% N/A
47 2004 100% 8/20/2004 $9,700,000 61.8% 47.1% N/A
48 1999 92% 8/31/2004 $8,780,000 65.6% 55.7% $529,432
50 N/A 82% 7/28/2004 $8,500,000 63.1% 63.1% N/A
52 $6,740,000 74.8% 57.7% N/A
52a N/A 100% 8/27/2004 $1,910,000
52b N/A 100% 8/27/2004 $1,780,000
52c N/A 100% 8/27/2004 $1,770,000
52d N/A 100% 8/27/2004 $1,280,000
61 N/A 100% 9/5/2004 $6,100,000 69.7% 59.6% N/A
69 N/A 100% 6/1/2004 $5,900,000 62.5% 40.0% N/A
70 N/A 100% 8/24/2004 $5,800,000 60.3% 56.1% N/A
72 1990 98% 7/31/2004 $4,900,000 69.2% 53.5% $465,528
81 N/A 100% 9/1/2004 $3,850,000 74.0% 63.4% $138,687
87 N/A 100% 8/24/2004 $3,650,000 72.5% 61.4% N/A
127 N/A 100% 6/22/2004 $2,000,000 74.7% 57.5% $159,960
Most Recent U/W U/W
# NCF NOI NCF (5)
13 $2,384,136 $2,198,001 $1,944,687
18 $1,149,602 $1,527,859 $1,435,609
20 $1,230,516 $1,373,112 $1,243,221
24 N/A $1,352,580 $1,253,797
27 $1,042,670 $993,648 $968,148
29 N/A $945,051 $892,674
31 $1,140,367 $1,051,753 $1,017,621
40 $276,150 $650,458 $588,337
42 $688,650 $695,412 $616,325
46 N/A $764,524 $742,068
47 N/A $750,577 $680,376
48 $4,254 $601,343 $536,143
50 N/A $639,625 $595,277
52 N/A $477,111 $475,472
52a
52b
52c
52d
61 N/A $412,250 $410,114
69 N/A $436,137 $361,044
70 N/A $409,436 $369,141
72 $465,528 $392,829 $381,654
81 $138,687 $320,133 $287,515
87 N/A $288,481 $251,596
127 $141,918 $180,530 $156,145
Contractual U/W
Engineering Recurring LC & TI Contractual Recurring Tax &
U/W Reserve at Replacement Reserve at Recurring Replacement U/W Insurance
# DSCR (6) Origination Reserve/FF&E Origination LC&TI Reserve/FF&E TI & LC Escrows
13 1.82x $0 $0 $0 $0 $36,740 $216,574 None
18 1.22x $223,125 $92,256 $0 $0 $92,250 $0 Both
20 1.23x $0 $47,472 $0 $0 $47,955 $81,937 Both
24 1.36x $0 $12,180 $1,600 $19,200 $12,585 $86,198 Both
27 1.29x $0 $25,500 $0 $0 $25,500 $0 Both
29 1.71x $0 $0 $0 $0 $11,709 $40,668 None
31 2.25x $0 $0 $0 $0 $10,753 $23,379 None
40 1.21x $0 $62,060 $0 $0 $62,121 $0 Both
42 1.23x $131,250 $79,087 $0 $0 $79,087 $0 Both
46 2.40x $0 $22,456 $0 $0 $22,456 $0 None
47 1.54x $0 $0 $0 $0 $15,618 $54,583 Both
48 1.31x $76,250 $65,200 $0 $0 $65,200 $0 Both
50 2.14x $0 $6,208 $0 $0 $5,609 $38,739 None
52 1.22x $0 $0 $0 $0 $1,640 $0 None
52a
52b
52c
52d
61 1.31x $0 $0 $0 $0 $2,136 $0 None
69 1.25x $0 $0 $0 $0 $53,173 $21,920 None
70 1.53x $0 $7,932 $0 $0 $7,900 $32,395 None
72 1.41x $0 $0 $0 $0 $11,175 $0 None
81 1.35x $0 $5,040 $2,500 $30,000 $5,040 $27,579 Both
87 1.33x $0 $5,376 $2,091 $25,088 $5,376 $31,509 Tax
127 1.33x $0 $0 $0 $0 $7,132 $17,253 None
Initial Orig Rem. Orig Rem.
Interest Only Amort. Amort. Term to Term to Interest
# Term Term Term (1) Maturity (4) Maturity (1) (4) Rate
13 60 Interest Only Interest Only 60 58 5.185%
18 0 360 358 120 118 5.540%
20 24 360 360 120 120 5.250%
24 0 360 359 120 119 5.950%
27 0 360 358 120 118 5.500%
29 60 Interest Only Interest Only 60 58 5.235%
31 60 Interest Only Interest Only 60 59 5.115%
40 0 360 359 120 119 5.640%
42 0 300 298 120 118 5.980%
46 60 Interest Only Interest Only 60 58 5.085%
47 0 300 299 120 119 5.510%
48 0 360 352 120 112 5.790%
50 60 Interest Only Interest Only 60 58 5.185%
52 0 324 322 120 118 6.260%
52a
52b
52c
52d
61 0 360 358 120 118 6.220%
69 0 310 309 178 177 6.250%
70 60 360 360 120 119 5.610%
72 0 300 298 120 118 6.330%
81 0 360 359 120 119 6.350%
87 0 360 359 120 119 5.900%
127 0 300 297 120 117 6.125%
First
Interest Calculation Monthly Payment Maturity
# (30/360 / Actual/360) Payment Date Date ARD (7) Seasoning
13 30/360 $89,117 10/1/2004 9/1/2009 N/A 2
18 Actual/360 $98,092 10/1/2004 9/1/2034 9/1/2014 2
20 Actual/360 $84,211 12/1/2004 11/1/2014 N/A 0
24 Actual/360 $76,928 11/1/2004 10/1/2014 N/A 1
27 Actual/360 $62,457 10/1/2004 9/1/2014 N/A 2
29 30/360 $43,426 10/1/2004 9/1/2009 N/A 2
31 30/360 $37,727 11/1/2004 10/1/2009 N/A 1
40 Actual/360 $40,362 11/1/2004 10/1/2014 N/A 1
42 Actual/360 $41,800 10/1/2004 9/1/2014 N/A 2
46 30/360 $25,800 10/1/2004 9/1/2009 N/A 2
47 Actual/360 $36,881 11/1/2004 10/1/2014 N/A 1
48 Actual/360 $33,995 4/1/2004 3/1/2014 N/A 8
50 30/360 $23,182 10/1/2004 9/1/2009 N/A 2
52 30/360 $32,368 10/1/2004 9/1/2014 N/A 2
52a
52b
52c
52d
61 Actual/360 $26,146 10/1/2004 9/1/2034 9/1/2014 2
69 Actual/360 $24,033 11/1/2004 8/1/2019 N/A 1
70 Actual/360 $20,115 11/1/2004 10/1/2034 10/1/2014 1
72 30/360 $22,597 10/1/2004 9/1/2014 N/A 2
81 Actual/360 $17,734 11/1/2004 10/1/2034 10/1/2014 1
87 Actual/360 $15,718 11/1/2004 10/1/2014 N/A 1
127 30/360 $9,779 9/1/2004 8/1/2014 N/A 3
Original Original
Original Yield Prepayment Original
Lockout Maintenance Premium Open
Prepayment Provision Period Period Period Period Defeasance
# as of Origination (8) (Months) (Months) (Months) (Months) (9)
13 YM1/56_0.0%/4 0 56 0 4 No
18 Lock/116_0.0%/4 116 0 0 4 Yes
20 Lock/116_0.0%/4 116 0 0 4 Yes
24 Lock/117_0.0%/3 117 0 0 3 Yes
27 Lock/117_0.0%/3 117 0 0 3 Yes
29 YM1/56_0.0%/4 0 56 0 4 No
31 YM1/56_0.0%/4 0 56 0 4 No
40 Lock/116_0.0%/4 116 0 0 4 Yes
42 Lock/117_0.0%/3 117 0 0 3 Yes
46 YM1/56_0.0%/4 0 56 0 4 No
47 YM1/116_0.0%/4 0 116 0 4 No
48 Lock/116_0.0%/4 116 0 0 4 Yes
50 YM1/56_0.0%/4 0 56 0 4 No
52 Lock/60_YM1/57_0.0%/3 60 57 0 3 No
52a
52b
52c
52d
61 Lock/116_0.0%/4 116 0 0 4 Yes
69 Lock/58_YM1/117_0.0%/3 58 117 0 3 No
70 Lock/116_0.0%/4 116 0 0 4 Yes
72 YM1/36_5.0%/24_4.0%/24_3.0%/12_2.0%/12_1.0%/9_0.0%/3 0 36 81 3 No
81 YM5/11_YM4/12_YM3/12_YM2/12_YM1/69_0.0%/4 0 116 0 4 No
87 YM1/116_0.0%/4 0 116 0 4 No
127 YM1/36_5.0%/36_4.0%/12_3.0%/12_2.0%/12_1.0%/9_0.0%/3 0 36 81 3 No
Yield Prepayment Servicing
Lockout Maintenance Premium Yield and Utilities
Expiration Expiration Expiration Maintenance Trustee Multifamily Tenant Multifamily
# Date Date Date Spread Fees Pays Elevators
13 N/A 6/1/2009 N/A T-Flat 0.05218% X/X X/X
00 0/0/0000 X/X X/X X/X 0.05218% Electric 3
20 8/1/2014 N/A N/A N/A 0.05218% X/X X/X
00 0/0/0000 X/X X/X X/X 0.10218% X/X X/X
00 0/0/0000 X/X X/X X/X 0.08218% Electric, Gas 3
29 N/A 6/1/2009 N/A T-Flat 0.05218% N/A N/A
31 N/A 7/1/2009 N/A T-Flat 0.05218% X/X X/X
00 0/0/0000 X/X X/X X/X 0.05218% None 0
42 7/1/2014 N/A N/A N/A 0.05218% Electric, Water 0
46 N/A 6/1/2009 N/A T-Flat 0.05218% N/A N/A
47 N/A 7/1/2014 N/A T-Flat 0.05218% X/X X/X
00 00/0/0000 X/X X/X X/X 0.05218% Electric 0
50 N/A 6/1/2009 N/A T-Flat 0.05218% N/A N/A
52 10/1/2009 7/1/2014 N/A T-Flat 0.05218%
00x X/X X/X
00x X/X X/X
52c X/X X/X
00x X/X X/X
61 6/1/2014 N/A N/A N/A 0.05218% N/A N/A
69 9/1/2009 6/1/2019 N/A T-Flat 0.05218% X/X X/X
00 0/0/0000 X/X X/X X/X 0.05218% N/A N/A
72 N/A 10/1/2007 7/1/2014 T-Flat 0.05218% N/A N/A
81 N/A 7/1/2014 N/A T-Flat 0.10218% N/A N/A
87 N/A 7/1/2014 N/A T-Flat 0.05218% X/X X/X
000 X/X 9/1/2007 6/1/2014 T-Flat 0.05218% N/A N/A
Subject Subject Subject Subject Subject Subject Subject Subject Subject
Studio Studio Studio 1 BR 1 BR 1 BR 2 BR 2 BR 2 BR
# Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent
13 N/A N/A N/A N/A N/A N/A N/A X/X X/X
00 X/X X/X X/X 176 $618 $730 192 $778 $1,550
00 X/X X/X X/X X/X X/X X/X X/X X/X N/A
24 N/A N/A X/X X/X X/X X/X X/X X/X X/X
27 N/A N/A N/A 101 $1,209 $1,209 1 $1,543 $1,543
00 X/X X/X X/X X/X X/X X/X X/X X/X N/A
31 N/A N/A X/X X/X X/X X/X X/X X/X X/X
00 X/X X/X X/X X/X X/X X/X 214 $657 $733
42 N/A N/A N/A 140 $502 $575 70 $712 $1,200
00 X/X X/X X/X X/X X/X X/X X/X X/X N/A
47 N/A N/A N/A N/A N/A N/A N/A X/X X/X
00 X/X X/X X/X 80 $541 $615 108 $639 $730
00 X/X X/X X/X X/X X/X X/X X/X X/X X/X
52
52a N/A N/A X/X X/X X/X X/X X/X X/X N/A
52b N/A N/A N/A N/A N/A N/A N/A N/A N/A
52c N/A N/A N/A N/A N/A N/A N/A N/A N/A
52d N/A N/A X/X X/X X/X X/X X/X X/X X/X
61 N/A N/A X/X X/X X/X X/X X/X X/X X/X
69 N/A N/A X/X X/X X/X X/X X/X X/X X/X
70 N/A N/A X/X X/X X/X X/X X/X X/X X/X
72 N/A N/A X/X X/X X/X X/X X/X X/X X/X
81 N/A N/A X/X X/X X/X X/X X/X X/X X/X
87 N/A N/A X/X X/X X/X X/X X/X X/X X/X
127 N/A N/A X/X X/X X/X X/X X/X X/X X/X
Subject Subject Subject Subject Subject Subject Subject Subject Subject
3 BR 3 BR 3 BR 4 BR 4 BR 4 BR 5 BR 5BR 5 BR
# Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent Units Avg. Rent Max. Rent
13 N/A N/A N/A N/A N/A N/A N/A N/A N/A
18 N/A N/A N/A 1 $1,250 $1,250 N/A N/A N/A
20 N/A N/A X/X X/X X/X X/X X/X X/X X/X
24 N/A N/A X/X X/X X/X X/X X/X X/X X/X
27 N/A N/A X/X X/X X/X X/X X/X X/X X/X
29 N/A N/A X/X X/X X/X X/X X/X X/X X/X
31 N/A N/A X/X X/X X/X X/X X/X X/X X/X
40 N/A N/A X/X X/X X/X X/X X/X X/X X/X
42 32 $748 $882 X/X X/X X/X X/X X/X X/X
46 N/A N/A X/X X/X X/X X/X X/X X/X X/X
47 N/A N/A X/X X/X X/X X/X X/X X/X X/X
48 12 $1,075 $997 X/X X/X X/X X/X X/X X/X
50 N/A N/A X/X X/X X/X X/X X/X X/X X/X
52
52a N/A N/A X/X X/X X/X X/X X/X X/X N/A
52b N/A N/A N/A N/A N/A N/A N/A N/A N/A
52c N/A N/A N/A N/A N/A N/A N/A N/A N/A
52d N/A N/A X/X X/X X/X X/X X/X X/X X/X
61 N/A N/A X/X X/X X/X X/X X/X X/X X/X
69 N/A N/A X/X X/X X/X X/X X/X X/X X/X
70 N/A N/A X/X X/X X/X X/X X/X X/X X/X
72 N/A N/A X/X X/X X/X X/X X/X X/X X/X
81 N/A N/A X/X X/X X/X X/X X/X X/X X/X
87 N/A N/A X/X X/X X/X X/X X/X X/X X/X
127 N/A N/A X/X X/X X/X X/X X/X X/X X/X
Major Major Major Major Major Major
Tenant #1 Tenant #1 Tenant #1 Lease Tenant #2 Tenant #2 Tenant #2 Lease
# Name Sq. Ft. Expiration Date Name Sq. Ft. Expiration Date
13 Bed Bath & Beyond 35,000 1/31/2017 Sports Authority 34,775 8/31/2008
00 X/X X/X X/X X/X X/X X/X
20 Albertsons 52,497 4/26/2022 Gottschalks 44,707 7/31/2008
24 Xxxx Stores, Inc. 30,187 1/31/2015 The Dress Barn, Inc. 8,000 12/31/2009
00 X/X X/X X/X X/X X/X X/X
29 Publix 44,840 3/31/2024 Blockbuster, Inc. 5,268 1/31/2009
31 Super Fresh 47,827 12/31/2018 Starter's Pub 6,208 12/31/2008
00 X/X X/X X/X X/X X/X N/A
42 N/A N/A N/A N/A N/A N/A
46 Wal-Mart Stores, Inc. 149,704 10/1/2017 N/A N/A N/A
47 Sportsmans Warehouse 56,755 8/31/2019 Ashley Furniture Homestore 47,362 6/30/2014
00 X/X X/X X/X X/X X/X N/A
50 Lady USA Fitness 6,000 10/31/2008 Cotton Patch Cafe 4,400 11/30/2008
52
52a KeyBank 2,796 8/31/2019 X/X X/X X/X
00x XxxXxxx 2,744 8/31/2019 N/A N/A N/A
52c KeyBank 2,777 8/31/2019 N/A N/A N/A
52d KeyBank 2,613 8/31/2019 N/A N/A N/A
61 Walgreens 14,238 9/30/2064 X/X X/X X/X
00 XXXX XX, Inc. 98,150 2/28/2019 N/A N/A N/A
70 American Signature Home 52,665 2/1/2020 N/A N/A N/A
72 N/A N/A N/A N/A N/A N/A
81 Lynntech, Inc. 19,200 8/31/2013 Shell Oil Company 14,400 8/31/2009
87 Dollar Tree 16,940 6/14/2014 Cato 3,900 4/25/2009
127 Priceless Prime Time 3,820 11/30/2006 Diving Lady of Arizona 2,220 1/31/2005
Major Major Major
Tenant #3 Tenant #3 Tenant #3 Lease
# Name Sq. Ft. Expiration Date
---------------
13 Xxxxxxxx'x 30,000 5/31/2011
18 N/A N/A N/A
20 JC Penney 29,842 9/30/2011
24 The Men's Warehouse, Inc. 4,500 9/30/2014
27 N/A N/A N/A
29 Dos Palomas Inc. 3,450 4/30/2010
31 Foxes Hallmark 5,200 2/28/2009
40 X/X X/X X/X
00 X/X X/X X/X
46 N/A N/A N/A
47 N/A N/A N/A
48 N/A N/A N/A
50 Washington Mutual (Ground Lease) 4,000 8/31/2028
52
00x X/X X/X X/X
00x X/X X/X X/X
52c N/A N/A N/A
52d N/A N/A N/A
61 N/A N/A N/A
69 N/A N/A N/A
70 N/A N/A N/A
72 N/A N/A N/A
81 N/A N/A N/A
87 Payless Shoe Source 2,800 5/20/2009
127 Phoenix Quest Club 2,020 4/30/2005
Initial Initial Other Contractual Contractual Letter
Other Reserve Other Other Reserve Letter of of Credit Earnout
# Reserve Description Reserve Description Credit Description Reserve
13 $0 N/A $0 N/A $0 N/A $0
18 $0 N/A $0 N/A $0 N/A $0
20 $61,733 Estoppel Escrow $0 N/A $0 N/A $0
24 $0 N/A $0 N/A $0 N/A $300,000
27 $0 N/A $0 N/A $0 N/A $0
29 $0 N/A $0 N/A $0 N/A $0
31 $0 N/A $0 N/A $0 N/A $0
40 $0 N/A $0 N/A $0 N/A $0
42 $0 N/A $0 N/A $0 N/A $0
46 $0 N/A $0 N/A $0 N/A $0
47 $20,000 Estoppel Escrow $0 N/A $0 N/A $0
48 $0 N/A $0 N/A $0 N/A $0
50 $129,672 Title Company Escrow $0 N/A $0 N/A $0
52 $0 N/A $0 N/A $0 N/A $0
52a
52b
52c
52d
61 $20,000 Punchlist Reserve $0 N/A $0 N/A $0
69 $0 N/A $0 N/A $0 N/A $0
70 $0 N/A $0 N/A $0 N/A $0
72 $0 N/A $0 N/A $0 N/A $0
81 $267,300 Shell Oil Escrow $0 N/A $0 N/A $0
87 $0 N/A $0 N/A $0 N/A $0
127 $0 N/A $0 N/A $0 N/A $0
Earnout
Reserve
# Description
13 N/A
18 N/A
20 N/A
24 Release upon: i) annualized net rental revenue for preceding 3 months is >= $1,428,012, ii) occupancy <= 92.5%,
iii) tenants open for business and paying rent
27 N/A
29 N/A
31 N/A
40 N/A
42 N/A
46 N/A
47 N/A
48 N/A
50 N/A
52 N/A
52a
52b
52c
52d
61 N/A
69 N/A
70 N/A
72 N/A
81 N/A
87 N/A
127 N/A
Additional Additional
Collateral Collateral
# Amount Event Date
13 X/X X/X
00 X/X X/X
00 X/X X/X
24 $300,000 3/23/2006
27 X/X X/X
00 X/X X/X
00 X/X X/X
40 N/A N/A
42 N/A N/A
46 N/A N/A
47 N/A N/A
48 N/A N/A
50 X/X X/X
00 X/X X/X
52a
52b
52c
52d
61 X/X X/X
00 X/X X/X
70 N/A N/A
72 N/A N/A
81 N/A N/A
87 X/X X/X
000 X/X X/X
Additional
Collateral
# Description
13 N/A
18 N/A
20 N/A
24 Release upon: i) annualized net rental revenue for preceding 3 months is >= $1,428,012,
ii) occupancy <= 92.5%, iii) tenants open for business and paying rent
27 N/A
29 N/A
31 N/A
40 N/A
42 N/A
46 N/A
47 N/A
48 N/A
50 N/A
52 N/A
52a
52b
52c
52d
61 N/A
69 N/A
70 N/A
72 N/A
81 N/A
87 N/A
127 N/A
Recurring
Existing Description Initial Renovation/ Initial
Secured Secondary of Existing Description Replacement Leasing Debt Service
# Financing Secured Secondary Financing of Lockbox Reserve Reserve Reserve
13 N/A N/A N/A $0 $0 $0
18 N/A N/A Springing $7,688 $0 $0
20 N/A N/A N/A $3,956 $0 $0
24 N/A N/A N/A $1,015 $0 $0
27 N/A N/A N/A $2,125 $0 $0
29 N/A N/A N/A $0 $0 $0
31 N/A N/A N/A $0 $0 $0
40 N/A N/A N/A $5,172 $0 $0
42 $250,000 Secured Note - CBA-Mezzanine Capital Finance, LLC Hard $6,591 $0 $0
46 N/A N/A N/A $0 $0 $0
47 N/A N/A N/A $0 $0 $0
48 N/A N/A N/A $5,433 $0 $0
50 N/A N/A N/A $0 $0 $0
52 N/A N/A N/A $0 $0 $0
52a
52b
52c
52d
61 N/A N/A Hard $0 $0 $0
69 N/A N/A N/A $0 $0 $0
70 N/A N/A Hard $661 $0 $0
72 N/A N/A N/A $0 $0 $0
81 N/A N/A Springing $420 $0 $0
87 N/A N/A N/A $448 $0 $0
000 X/X X/X X/X $0 $0 $0
1 Assumes a Cut-off Date in November 2004.
2 At maturity with respect to Balloon Loans or at the ARD in the case of ARD
Loans. There can be no assurance that the value of any particular
Mortgaged Property will not have declined from the original appraisal
value.
3 In the case of cross-collateralized and cross-defaulted Underlying
Mortgage Loans, the combined LTV is presented for each and every related
Underlying Mortgage Loan.
4 In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
5 U/W NCF reflects the Net Cash Flow after U/W Replacement Reserves, U/W
LC's and TI's and U/W FF&E. With respect to the Residential Cooperative
Loans, U/W Replacement Reserves/FF&E are captured in U/W Expenses;
however, we show them for presentational purposes only.
6 U/W DSCR is based on the amount of the monthly payments presented. In the
case of cross-collateralized and cross-defaulted Underlying Mortgage Loans
the combined U/W DSCR is presented for each and every related Underlying
Mortgage Loan.
7 Anticipated Repayment Date.
8 Prepayment Provision as of Origination:
Lock/(x) = Lockout or Defeasance for (x) payments
YMA/(y) = Greater of Yield Maintenance Premium and A% Prepayment for (y)
payments
A%/(y) = A% Prepayment for (y) payments
0.0%/(x) = Prepayable at par for (x) payments
9 "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
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 set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Exception (x):
-------------
With respect to Loan No. 10024791/High Vista Apartments, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and is not included in the sale
by the Seller to the Purchaser. The related Mortgage secures both the Mortgage
Loan (with a first priority lien) and the corresponding "B Loan" (with a
subordinate lien thereto).
Exception (xiii):
----------------
With respect to Loan No. 10024791/High Vista Apartments, the Mortgage Loan
is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The Mortgage and title insurance policy are each in the amount of
the sum of the principal balances of the Mortgage Loan and the corresponding
subordinate "B Loan".
Exception (xx):
--------------
Correspondent fees are payable with respect to each of the following
Mortgage Loans:
Loan Xx. 00000000 / Xxxx Xxxxx Promenade
Loan No. 10023657 / Three Research Park Office Building
Loan No. 10023802 / Casa Pacifica Apartments
Exception (xxiii):
-----------------
With respect to each of the following Mortgage Loans, the insurer that
issued the fire and extended perils insurance policy met the requirements of the
Pooling and Servicing Agreement regarding an S&P rating, but such carrier was
not rated by Xxxxx'x:
Loan No. 10023657 / Three Research Park Office Building
Loan No. 10023802 / Casa Pacifica Apartments
Loan No. 10024017 / Kietzke Plaza
Loan No. 10024665 / Sun City RV & Mini Storage
Loan No. 10024887 / Xxxxxxxxxx Xxxx Xxxxxx
Xxxx Xx. 00000000 / Xxx Xxxxx Apartments
With respect to each of the following Mortgage Loans, the insurer that
issued the fire and extended perils insurance policy was not rated by either S&P
or Xxxxx'x:
Loan Xx. 00000000 / Xxxxxxxx Xxxxx Apartments
Loan No. 10024266 / Blendon Square Townhomes
Loan No. 10024791 / High Vista Apartments
Loan No. 10024931 / Tyler Shopping Center
With respect to Loan No. 10024981/American Signature Home, the insurer
that issued the fire and extended perils insurance coverage did not meet the
requirements of the Pooling Servicing Agreement regarding the S&P rating and
such carrier was not rated by Xxxxx'x. Additionally, the requirement that
business interruption insurance be obtained was waived because the related
borrower's lease with its sole tenant does not permit abatement following a
casualty.
With respect to Loan No. 00000000/Xxxxxxxxx Xxxxxxx Way, the sole tenant,
Walgreens Co., self insures for the required coverages. The requirement that
business interruption insurance be obtained was waived because the related
borrower's lease with Walgreens Co. does not permit abatement of rent following
a casualty.
With respect to Loan No. 10023800/ATYS Industrial Building, there is not
an insurance policy in place with respect to acts of terrorism.
With respect to Loan Nos. 10024995/Paradise Shoppes of Prominence Point,
10024997/Xxxxx Xxxxx Crossing, 10024998/Governor's Marketplace Shopping Center,
10024991/Wal-Mart Super Center - Jonesboro and 10025000/Saucon Valley Square,
the related Mortgage Loan documents provide that the related borrower is
required to maintain insurance coverage for acts of terrorism if such coverage
is commercially reasonable for properties similar to the related Mortgaged
Property; provided, however, that the related borrower will not be required to
maintain such terrorism coverage if (i) borrower confirms in writing that it
will protect and hold the mortgagee harmless from losses associated with
terrorism risks by, among other things, depositing with the mortgagee sums
sufficient to pay all uninsured costs related to a restoration following any act
of terrorism, or prepaying the related Mortgage Loan in accordance with the
provisions of the related Mortgage Loan documents (including payment of
applicable prepayment consideration), and (ii) the indemnitor for the related
Mortgage Loan executes a guaranty pursuant to which such indemnitor guarantees
payment of all losses associated with terrorism risks and such indemnitor
maintains a specified net worth and a specified loan to value ratio for all
properties in which such entity has a direct or indirect ownership interest.
Exception (xxxi):
----------------
(J) With respect to Loan No. 10024931/Tyler Shopping Center, if the
related borrower/lessee terminates the ground lease following a casualty (which
the borrower/lessee cannot do without the prior consent of the holder of the
related Mortgage Loan), at lessor's request borrower/lessee must first use
insurance proceeds to pay for removal of remaining structures and debris before
proceeds are applied to payment of the outstanding principal balance of the
Mortgage Loan. The related Mortgage Loan Documents include a non-recourse carve
out for borrower's failure to pay for the removal of structures and debris
following such a casualty.
Exception (xxxvi):
-----------------
With respect to Loan No. 10024791/High Vista Apartments, the related
Mortgage Loan is the "A Loan" of an A/B structured loan transaction. The
corresponding "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and is not included in the sale by the Seller to the
Purchaser. The related Mortgage secures both the Mortgage Loan and the "B Loan".
Exception (xxxviii):
-------------------
With respect to Loan Xx. 00000000/Xxxx Xxxxxxxx Xxxxxxxxxx, the related
borrower may incur additional debt secured by the related mortgaged real
property on a subordinate basis upon the written approval of the holder of the
related mortgage and the satisfaction of various specified conditions, including
specified debt-service-coverage and loan-to-value ratios, execution of an
intercreditor and subordination agreement by an institutional lender, execution
of a lockbox agreement and, if required, receipt of rating agency confirmation.
With respect to Loan No. 10024913/Oak Grove Apartments, the partners of a
related borrower may pledge their respective ownership interests in the
borrower, upon the prior written consent of the holder of the related mortgage
and the satisfaction of various specified conditions, including specified debt
service coverage and loan-to-value ratios, execution of an intercreditor and
subordination agreement by an institutional mezzanine lender, establishment of a
lockbox arrangement and receipt of rating agency confirmation if required.
Exception (xxxix):
-----------------
With respect to Loan Nos. 10023800/ATYS Industrial Building,
10024187/Xxxxxx & Xxxxxxx Plaza, 10024645/Black Elk and 10024665/Sun City RV &
Mini Storage, the Mortgage Loan Documents do not include an express covenant by
the borrower that it shall remain in material compliance with all material
licenses, permits and other legal requirements necessary and required to conduct
its business, but the Mortgage Loan Documents do include a covenant by the
borrower that it will comply with all laws, ordinances and regulations governing
the use of the Mortgaged Property.
Exception (xlvii):
-----------------
With respect to Loan No. 10024645/Black Elk which is secured by four
Mortgaged Properties, the related borrower may, after the fifth loan year,
obtain the release of any of the four related Mortgaged Properties if certain
conditions are satisfied including prepayment of 120% of the portion of the
then-outstanding principal balance of the Mortgage Loan that is attributable to
the Mortgaged Property being released, calculated as stipulated in the related
Mortgage Loan Documents, and payment of the applicable prepayment consideration
with respect to such release price.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of 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 Seller. Wherever there is a
reference to receipt by, or possession of, Seller of any information or
documents, or to any action taken by Seller or not taken by 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 Seller or any servicer acting on its behalf.
Seller hereby represents and warrants, subject to the exceptions set
forth in the Exception Report annexed to this Agreement as 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
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to Seller),
participation or pledge, and 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 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:
(x) 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;
(y) 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
(z) 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) Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) 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. Each
related Assignment of Leases 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 Seller to the
Trustee and related assignment of the Assignment of Leases, if the
Assignment of Leases is a separate document from the Mortgage, is in
recordable form (but for the insertion of the name and address of the
assignee and any related recording information, which is not yet available
to Seller), 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
Seller to the Trustee constitutes the legal, valid and binding assignment
from Seller to the Trustee, 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;
(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 except that, in the case of each of the CBA
Mortgage Loans, the related Mortgage encumbering the related Mortgaged
Property also secures another mortgage loan; 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 UCC Financing Statements are required in order to effect such
perfection;
(xi) 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) 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 named mortgagee 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, (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, (D) the rights of tenants, as tenants only, under leases,
including subleases, pertaining to the related Mortgaged Property, (E) if
the related Mortgage Loan is cross-collateralized with any other Mortgage
Loan, the lien of the mortgage instrument for that other Mortgage Loan and
(F) if the related Mortgaged Property is a unit in a condominium, the
related condominium declaration (items (A), (B), (C), (D), (E) and (F)
collectively, "Permitted Encumbrances"), and except that, in the case of
each of the CBA Mortgage Loans, the related Mortgage encumbering the
related Mortgaged Property also secures another mortgage loan; 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 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 this Agreement; no claims have been made under such policy
and 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
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 (1) $50,000 and (2)
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
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) 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
related 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 lender 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 Seller nor, to 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 and/or servicing rights purchase agreements being executed and
delivered in connection therewith;
(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 Seller or
its agent and there are no deficiencies (subject to any applicable grace
or cure periods) in connection therewith, all such escrows and deposits
are being conveyed by Seller to Depositor and identified as such with
appropriate detail, and any and all 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 Cut-off
Date 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 the
applicable Exception Report. 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 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 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.
Notwithstanding the foregoing, 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 Seller elsewhere in this
Exhibit A or the Exception Report;
(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; and 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 (or,
with respect to residential cooperative loans with an original principal
balance of $350,000 or less, a transaction screen meeting ASTM standards)
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 (or transaction
screen) 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 (or transaction screen), 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 impaired property environmental insurance policy
was obtained with respect to each such Mortgage Loan. Each of such secured
creditor impaired property environmental insurance policies 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, and has a term extending not less
than five years after the maturity date of the related Mortgage Loan; the
premiums for such policies have been paid in full; the Trustee is named as
an insured under each of such policies; and Seller has delivered to the
insurer all related environmental reports in its possession. To Seller's
knowledge, in reliance on the environmental reports referred to in the
second sentence of this paragraph (xxvii) 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
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 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 or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related borrower in
connection with the assignment of a proprietary lease for a unit in the
related Mortgaged Property by a tenant-shareholder of the related borrower
to other persons who by virtue of such transfers become
tenant-shareholders in the related 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 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
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) With respect to any Mortgage Loan where all or any portion of
the estate of the related borrower therein is a leasehold estate under a
ground lease, and the related Mortgage does not also encumber the related
lessor's fee interest in such Mortgaged Property, based upon the terms of
the ground lease and any estoppel received from the ground lessor, Seller
represents and warrants that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns in a manner that would
adversely affect the security provided by the related
Mortgage. To Seller's knowledge, there has been no material
change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the
related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease
may not be amended, modified, canceled or terminated 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;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by
the lender) that extends not less than 10 years beyond the
amortization term of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by Seller, the ground lease is not subject
to any liens or encumbrances superior to, or of equal priority
with, the Mortgage, subject to Permitted Encumbrances and
liens that encumber the ground lessor's fee interest;
(E) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent
of the lessor thereunder;
(F) The ground lease is in full force and effect, Seller has no
actual knowledge that any default beyond applicable notice and
grace periods has occurred, and to Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of
the ground lease;
(G) The ground lease or ancillary agreement, which is part of the
Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the
lender;
(H) The lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground
lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All
rights of the lender under the ground lease and the related
Mortgage (insofar as it relates to the ground lease) may be
exercised by or on behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by a prudent commercial mortgage lender. The lessor is not
permitted to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee in the relevant
portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect
the security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the lender
or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses
(except in such cases 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 to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued
interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of
the related Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as provided
by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the lender as a result of
any casualty or partial condemnation; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for any
reason, including rejection of the ground lease in a
bankruptcy proceeding;
(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 lender
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 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) Except in the case of each of the CBA Mortgage Loans with
respect to those Mortgage Loans that are cross-collateralized or
cross-defaulted, all other loans that are cross-collateralized or
cross-defaulted with such Mortgage Loans are being transferred to
Depositor hereunder;
(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) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) 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 (1) 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 (2) at the date
hereof; provided that the fair market value of the real property must
first be reduced by (x) the amount of any lien on the real property
interest that is senior to the Mortgage Loan and (y) 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 (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 lender or any mezzanine debt related to such Mortgaged Property,
except as set forth in the Prospectus Supplement, in this Exhibit A or in
the Exception Report;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, 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 Seller's actual knowledge, each borrower has fully
complied with the requirements of the related Note and Mortgage and
borrower's organizational documents regarding Single-Purpose Entity
status;
(xxxviii) Except in cases where the related Mortgaged Property is a
residential cooperative property, 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 (A) the replacement cost
of the material improvements on such Mortgaged Property, (B) the balance
of the Mortgage Loan and (C) 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) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of 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;
(xliv) No advance of funds has been made by 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 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;
(xlv) 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;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report or the
Prospectus Supplement with respect to the Crossed Mortgage Loans and
Mortgage Loans secured by multiple, non-contiguous real properties, 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, (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);
(xlviii) 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;
(xlix) Each UCC Financing Statement, if any, filed with respect to
personal property constituting a part of the related Mortgaged Property
and each assignment, if any, of such UCC Financing Statement to Seller
was, and each assignment, if any, of such UCC 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 Seller) is, in suitable form for filing in
the filing office in which such UCC Financing Statement was filed;
(l) To 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;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject property is located, 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 Mortgage Loans
with a Cut-off Date Principal Balance of over $10,000,000, if the related
Mortgaged Property does not so comply, to the extent 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;
(lii) 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 with respect to such Mortgage Loan
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the borrower can
pledge only United States government securities in an amount sufficient to
make all scheduled payments under the Mortgage Loan when due, (C) the
borrower is required to provide independent certified public accountant's
certification that the collateral is sufficient to make such payments, (D)
the loan may be required to be assumed by a single-purpose entity
designated by the holder of the Mortgage Loan, (E) 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,
(F) 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,
(G) 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 (H) 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;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (A) the misapplication or
misappropriation of rents, insurance proceeds or condemnation awards, (B)
any willful act of material waste, (C) any breach of the environmental
covenants contained in the related Mortgage Loan Documents, and (D) fraud
by the related borrower; provided that, with respect to clause (C) of this
sentence, an indemnification against losses related to such violations or
environmental insurance shall satisfy such requirement; and provided,
further, that, if the related Mortgaged Property is a residential
cooperative property, then the subject Mortgage Loan is fully recourse to
the borrower;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) 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; (B) its Anticipated Repayment Date is not
less than seven years following the origination of such Mortgage Loan; (C)
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 applicable Master Servicer; and (D) 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;
(lvi) 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 Cut-off Date Principal Balances of all of the mortgage
loans (including the Mortgage Loans) sold to Depositor by Column
Financial, Inc., NCB, FSB and KeyBank National Association pursuant to
those certain Mortgage Loan Purchase Agreements, each dated as of November
1, 2004, between Depositor and Column Financial, Inc., NCB, FSB and
KeyBank National Association, respectively, as of the Cut-off Date;
(lvii) 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, Seller obtained an appraisal of the
related Mortgaged Property, which appraisal is signed by an appraiser,
who, to 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
(lviii) 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 KeyBank National
Association ("KeyBank");
2. that _______________ 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. that _______________, 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 _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. 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;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by 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 2004-C4 (the "Trustee") (which assignment may,
at the discretion of Depositor, be made directly by _______________ to the
Trustee), _______________ 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
_______________'s failure to deliver said original Note to the Trustee.
KEYBANK NATIONAL ASSOCIATION
By: ___________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2004
