CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., PURCHASER WALKER & DUNLOP COMMERCIAL PROPERTY FUNDING I CS, LLC, SELLER and WALKER & DUNLOP COMMERCIAL PROPERTY FUNDING, LLC MORTGAGE LOAN PURCHASE AGREEMENT Dated as of November 1, 2015 Series 2015-C4
Exhibit 99.3
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP.,
PURCHASER
XXXXXX & DUNLOP COMMERCIAL PROPERTY
FUNDING I CS, LLC,
SELLER
and XXXXXX & DUNLOP COMMERCIAL PROPERTY FUNDING, LLC
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of November 1, 2015
Series 2015-C4
This Mortgage Loan Purchase Agreement (“Agreement”), dated as of November 1, 2015, is between Credit Suisse First Boston Mortgage Securities Corp., a Delaware corporation, as purchaser (in such capacity, the “Purchaser”), and Xxxxxx & Dunlop Commercial Property Funding I CS, LLC, a Delaware limited liability company, as seller (the “Seller”), and Xxxxxx & Dunlop Commercial Property Funding, LLC (“WDCPF”).
Capitalized terms used in this Agreement not defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement, dated as of November 1, 2015 (the “Pooling and Servicing Agreement”), among the Purchaser, as depositor (in such capacity, the “Depositor”), Xxxxx Fargo Bank, National Association, as master servicer (in such capacity, the “Master Servicer”), Midland Loan Services, a Division of PNC Bank, National Association, as special servicer (the “Special Servicer”), Pentalpha Surveillance LLC, as operating advisor, Xxxxx Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), and Wilmington Trust, National Association, as trustee (the “Trustee”), pursuant to which the Purchaser will transfer the Mortgage Loans (as defined herein), together with certain other mortgage loans, to a trust and certificates representing ownership interests in the Mortgage Loans, together with the other mortgage loans, will be issued by the trust (the “Trust”). In exchange for the Mortgage Loans and the other mortgage loans, the Trust will issue to or at the direction of the Depositor certificates to be known as CSAIL 2015-C4 Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series 2015-C4 (collectively, the “Certificates”). For purposes of this Agreement, “Mortgage Loans” refers to the mortgage loans listed on Exhibit A and “Mortgaged Properties” refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of the Mortgage Loans from the Seller to the Purchaser and in consideration of the premises and the mutual agreements hereinafter set forth, agree as follows:
each Mortgage Loan prepared by or which come into the possession of the Seller shall (subject to the rights of each holder of an interest in any related Companion Loan, as and to the extent applicable) immediately vest in the Purchaser and immediately thereafter the Trustee. The Purchaser will sell certain of the Certificates (the “Public Certificates”) to the underwriters (the “Underwriters”) specified in the Underwriting Agreement, dated as of November 18, 2015 (the “Underwriting Agreement”), between the Purchaser and the Underwriters, and the Purchaser will sell certain of the Certificates (the “Private Certificates”) to the initial purchasers (the “Initial Purchasers” and, collectively with the Underwriters, the “Dealers”) specified in the Purchase Agreement, dated as of November 18, 2015 (the “Certificate Purchase Agreement”), between the Purchaser and Initial Purchasers.
The sale and conveyance of the Mortgage Loans is being conducted on an arms-length basis and upon commercially reasonable terms. As consideration for the Mortgage Loans, the Purchaser shall pay, by wire transfer of immediately available funds, to the Seller or at the Seller’s direction $119,660,948, plus accrued interest on the Mortgage Loans from and including November 1, 2015 to but excluding the Closing Date (but subject to certain post-settlement adjustments for expenses incurred by the Underwriters and the Initial Purchasers on behalf of the Depositor and for which the Seller is specifically responsible). The purchase and sale of the Mortgage Loans shall take place on the Closing Date.
The transfer of each Mortgage Loan shall be reflected on the Seller’s balance sheets and other financial statements as the sale of such Mortgage Loan by the Seller to the Purchaser. The Seller intends to treat the transfer of each Mortgage Loan to the Purchaser as a sale for tax purposes. Following the transfer of the Mortgage Loans by the Seller to the Purchaser, the Seller shall not take any actions inconsistent with the ownership of the Mortgage Loans by the Purchaser and its assignees.
The transfer of each Mortgage Loan shall be reflected on the Purchaser’s balance sheets and other financial statements as the purchase of such Mortgage Loan by the Purchaser from the Seller. The Purchaser intends to treat the transfer of each Mortgage Loan from the Seller as a purchase for tax purposes. The Purchaser shall be responsible for maintaining, and shall maintain, a set of records for each Mortgage Loan which shall be clearly marked to reflect the transfer of ownership of each Mortgage Loan by the Seller to the Purchaser pursuant to this Agreement.
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(b) The Seller shall deliver to and deposit with (or cause to be delivered to and deposited with) the Master Servicer, within five (5) Business Days after the Closing Date, a copy of the Mortgage File and documents and records not otherwise required to be contained in the Mortgage File that (i) relate to the origination and/or servicing and administration of the Mortgage Loans and each related Serviced Companion Loan, as applicable, (ii) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans and each related Serviced Companion Loan, as applicable (including any asset summaries related to the Mortgage Loans that were delivered to the Rating Agencies in connection with the rating of the Certificates), or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans and each related Serviced Companion Loan, as applicable, or holders of interests therein and (iii) are in the possession or under the control of the Seller, together with (x) all unapplied Escrow Payments and reserve funds in the possession or under control of the Seller that relate to the Mortgage Loans (other than any Mortgage Loan that is a Non-Serviced Mortgage Loan as of the Closing Date) and any related Serviced Companion Loan, as applicable, and (y) a statement indicating which Escrow Payments and reserve funds are allocable to each Mortgage Loan, (or any related Serviced Companion Loan, as the case may be); provided that copies of any document in the Mortgage File and any other document, record or item referred to above in this sentence that constitutes a Designated Servicing Document shall be delivered to the Master Servicer on or before the Closing Date; provided, further, that the Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations. In addition, notwithstanding anything to the contrary contained in this Agreement, if there exists with respect to any group of related cross-collateralized Mortgage Loans only one original of any document referred to in Section 2.01 of the Pooling and Servicing Agreement covering all of the Mortgage Loans in such group, then the inclusion of the original of such document in the Mortgage File for any Mortgage Loan in such group shall be deemed an inclusion of such original in the Mortgage File for each such Mortgage Loan.
So as long as any Certificate is outstanding, the Seller shall, upon reasonable notice, reasonably cooperate with the Trustee, the Master Servicer, the Special Servicer, the Custodian and/or the Depositor, as applicable, to provide all items in the Mortgage Files and execute and/or deliver any documents that are necessary to effect the delivery, assignment and/or
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recordation of any document relating to the Mortgage Loans at the time required for enforcement by the Trust.
(c) With respect to any Mortgage Loan secured by a Mortgaged Property that is subject to a franchise agreement with a related comfort letter in favor of the Seller that requires notice to or request of the related franchisor to transfer or assign any related comfort letter to the Trustee for the benefit of the Certificateholders or have a new comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter) issued in the name of the Trustee for the benefit of the Certificateholders, the Seller or its designee shall, within 45 days of the Closing Date (or any shorter period if required by the applicable comfort letter), provide any such required notice or make any such required request to the related franchisor for the transfer or assignment of such comfort letter or issuance of a new comfort letter (or any such new document or acknowledgement as may be contemplated under the existing comfort letter), with a copy of such notice or request to the Custodian (who shall include such document in the related Mortgage File), the Master Servicer and the Special Servicer, and the Pooling and Servicing Agreement shall require the Master Servicer to use reasonable efforts in accordance with the Servicing Standard to acquire such replacement comfort letter, if necessary (or to acquire any such new document or acknowledgement as may be contemplated under the existing comfort letter).
SECTION 5 Covenants of the Seller. The Seller covenants with the Purchaser as follows:
(a) except with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan, it shall record or cause a third party to record and file in the appropriate public recording office for real property records or UCC financing statements, as appropriate (or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver to the Custodian for such purpose and cause the Custodian to record and file), the assignments of assignment of leases, rents and profits and the assignments of Mortgage and each related UCC-3 financing statement referred to in the definition of Mortgage File from the Seller to the Trustee as and to the extent contemplated under Section 2.01(c) of the
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Pooling and Servicing Agreement. All out of pocket costs and expenses relating to the recordation or filing of such assignments of assignment of leases, rents and profits, assignments of Mortgage and financing statements shall be paid by the Seller. If any such document or instrument is lost or returned unrecorded or unfiled, as the case may be, because of a defect therein, then the Seller shall prepare or cause the preparation of a substitute therefor or cure such defect or cause such defect to be cured, as the case may be, and the Seller shall record or file, or cause the recording or filing of, such substitute or corrected document or instrument or, with respect to any assignments that the Custodian has agreed to record or file pursuant to the Pooling and Servicing Agreement, deliver such substitute or corrected document or instrument to the Custodian (or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing Agreement, the then holder of such Mortgage Loan);
(b) as to each Mortgage Loan, except with respect to any Mortgage Loan that is a Non-Serviced Mortgage Loan, if the Seller cannot deliver or cause to be delivered the documents and/or instruments referred to in clauses (2), (3), (6) (if recorded) and (15) of the definition of “Mortgage File” in the Pooling and Servicing Agreement 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, as applicable, it shall forward to the Custodian a copy of the original certified by the Seller to be a true and complete copy of the original thereof submitted for recording. The Seller shall cause each assignment referred to in Section (5)(a) above that is recorded and the file copy of each UCC-3 assignment referred to in Section (5)(a) above to reflect that it should be returned by the public recording or filing office to the Custodian or its agent following recording (or, alternatively, to the Seller or its designee, in which case the Seller shall deliver or cause the delivery of the recorded original to the Custodian promptly following receipt); provided that, in those instances where the public recording office retains the original assignment of Mortgage or assignment of Assignment of Leases, the Custodian shall obtain therefrom a certified copy of the recorded original. On a monthly basis, at the expense of the Seller, the Custodian shall forward to the Master Servicer a copy of each of the aforementioned assignments following the Custodian’s receipt thereof;
(c) it shall take any action reasonably required by the Purchaser, the Certificate Administrator, the Trustee or the Master Servicer in order to assist and facilitate the transfer of the servicing of the Mortgage Loans (other than any Non-Serviced Mortgage Loans) to the Master Servicer, including effectuating the transfer of any letters of credit with respect to any Mortgage Loan (other than any Non-Serviced Mortgage Loans) to the Master Servicer on behalf of the Trustee for the benefit of Certificateholders (and, in the case of each Serviced Whole Loan, the holder of the related Serviced Companion Loan, as and to the extent applicable). Prior to the date that a letter of credit with respect to any Mortgage Loan is transferred to the Master Servicer, the Seller will cooperate with the reasonable requests of the Master Servicer or Special Servicer, as applicable, in connection with effectuating a draw under such letter of credit as required under the terms of the related Mortgage Loan Documents;
(d) the Seller shall provide the Master Servicer the initial data with respect to each Mortgage Loan for the CREFC® Financial File and the CREFC® Loan Periodic Update File that are required to be prepared by the Master Servicer pursuant to the Pooling and Servicing Agreement and the Supplemental Servicer Schedule;
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(e) if (during the period of time that the Underwriters are required, under applicable law, to deliver a prospectus related to the Public Certificates in connection with sales of the Public Certificates by an Underwriter or a dealer) the Seller has obtained actual knowledge of undisclosed or corrected information related to an event that occurred prior to the Closing Date, which event causes there to be an untrue statement of a material fact with respect to the Disclosure Materials, or causes there to be an omission to state therein a material fact with respect to the Disclosure Materials required to be stated therein or necessary to make the statements therein with respect to the Disclosure Materials, in the light of the circumstances under which they were made, not misleading, then the Seller shall promptly notify the Dealers and the Depositor. If as a result of any such event the Dealers’ legal counsel determines that it is necessary to amend or supplement the Prospectus Supplement, dated November 23, 2015 relating to the Public Certificates, the annexes and exhibits thereto, or the Offering Circular dated November 23, 2015 relating to the Private Certificates, the annexes and exhibits thereto (collectively, the “Offering Documents”) in order to correct the untrue statement, or to make the statements therein, in the light of the circumstances when the Offering Documents are delivered to a purchaser, not misleading, or to make the Offering Documents in compliance with applicable law, the Seller shall (to the extent that such amendment or supplement solely relates to the Disclosure Materials) at the expense of the Seller, do all things reasonably necessary to assist the Depositor to prepare and furnish to the Dealers, such amendments or supplements to the Offering Documents as may be necessary so that the Disclosure Materials, as so amended or supplemented, will not contain an untrue statement, will not, in the light of the circumstances when the Offering Documents are delivered to a purchaser, be misleading and will comply with applicable law. (All terms under this clause (e) and not otherwise defined in this Agreement shall have the meanings set forth in the Indemnification Agreement, dated as of November 18, 2015, among the Underwriters, the Initial Purchasers, the Seller, WDCPF and the Purchaser (the “Indemnification Agreement” and, together with this Agreement, the “Operative Documents”));
(f) if the Seller requires the Master Servicer to retain any Servicing Function Participant to service any Mortgage Loan as of the Closing Date, it shall cause such Servicing Function Participant to comply, as evidenced by written documentation between such Servicing Function Participant and the Seller, Purchaser or Master Servicer, with all reporting requirements set forth in Sections 10.03, 10.04, 10.05, 10.06, 10.07, 10.08, 10.09, 10.11, 10.12 and 10.18 of the Pooling and Servicing Agreement applicable to such Servicing Function Participant for the Mortgage Loans, for so long as the Trust is subject to the reporting requirements of the Exchange Act;
(g) for so long as the Trust (or any Other Securitization Trust that holds a related Companion Loan) is subject to the reporting requirements of the Exchange Act, the Seller shall provide the Depositor and the Certificate Administrator with any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure and any Form 8-K Disclosure Information indicated on Exhibit U, Exhibit V and Exhibit Z to the Pooling and Servicing Agreement, to the extent contemplated to be provided by the Seller in its capacity as a “Sponsor”, within the time periods set forth in the Pooling and Servicing Agreement; provided that, in connection with providing Additional Form 10-K Disclosure and the Seller’s reporting obligations under Item 1119 of Regulation AB, upon reasonable request by the Seller, the Purchaser shall provide the Seller with a list of all parties to the Pooling and Servicing Agreement and any other Servicing Function Participant; and
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(h) it shall indemnify and hold harmless the Depositor and its directors and officers, and each other person who controls the Depositor within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against any and all expenses, losses, claims, damages and other liabilities, including without limitation the costs of investigation, legal defense and any amounts paid in settlement of any claim or litigation arising out of or based upon (i) a failure of the Seller to perform its obligations under Section 5(g) or (ii) negligence, bad faith or willful misconduct on the part of the Seller in the performance of such obligations.
SECTION 6 Representations and Warranties.
(a) (i) The Seller represents and warrants to the Purchaser as of the date hereof and as of the Closing Date that:
(A) The Seller is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware with full power and authority to own its assets and conduct its business, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to hold and sell the Mortgage Loans or otherwise comply with its obligations under this Agreement except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and the Seller has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute, deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby, including, but not limited to, the power and authority to sell, assign, transfer, set over and convey the Mortgage Loans in accordance with this Agreement;
(B) Assuming the due authorization, execution and delivery of this Agreement by the Purchaser, this Agreement will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement that purport to provide indemnification for securities laws liabilities;
(C) The execution and delivery of each Operative Document by the Seller and the performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which the Seller is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Seller’s organizational documents or any agreement or instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or imposition
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of any lien on any of the Seller’s assets or property, in each case which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by the Operative Documents;
(D) There is no action, suit, proceeding or investigation pending or, to the Seller’s knowledge, threatened against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of the Seller to carry out the transactions contemplated by each Operative Document;
(E) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that, in the Seller’s good faith and reasonable judgment, is likely to materially and adversely affect its performance under any Operative Document;
(F) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by the Seller;
(G) The transfer, assignment and conveyance of the Mortgage Loans by the Seller to the Purchaser is not subject to bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction;
(H) The Seller has no actual knowledge that any statement, report, officer’s certificate or other document prepared and furnished or to be furnished by such Seller in connection with the transactions contemplated hereby (including, without limitation, any financial cash flow models and underwriting file abstracts furnished by such Seller) (collectively, the “Provided Information”) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, or, to the extent that it has become aware of any material misstatement or omission in any Provided Information, the Seller has notified the Depositor in writing of such material misstatement or omission at least one Business Day prior to the Time of Sale (as defined in the Indemnification Agreement) and updated such Provided Information or the material misstatement or omission has been corrected in the Time of Sale Information (as defined in the Indemnification Agreement); and
(I) The Seller has caused each Servicing Function Participant that the Seller has caused the Master Servicer, if any, to retain and that services a Mortgage Loan as of the Closing Date to comply, as evidenced by written
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documentation between each such Servicing Function Participant and the Seller, Purchaser or Master Servicer, with all reporting requirements set forth in Sections 10.03, 10.04, 10.05, 10.06, 10.07, 10.08, 10.09, 10.11, 10.12 and 10.18 of the Pooling and Servicing Agreement applicable to such Servicing Function Participant for the Mortgage Loans, for so long as the Trust is subject to the reporting requirements of the Exchange Act.
(J) Except for the agreed-upon procedures report obtained from the accounting firm engaged to provide procedures involving a comparison of information in loan files for the Mortgage Loans to information on a data tape relating to the Mortgage Loans (the “Accountant’s Due Diligence Report”), the Seller has not obtained (and, through and including the Closing Date, will not obtain) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Exchange Act) in connection with the transactions contemplated herein and in the Offering Documents and, except for the accountants with respect to the Accountants’ Due Diligence Report, the Seller has not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Offering Documents. The Underwriters and Initial Purchasers are third-party beneficiaries of the provisions set forth in this Section 6(a)(i)(J).
(ii) WDCPF represents and warrants to the Purchaser as of the date hereof and as of the Closing Date that:
(A) WDCPF is a limited liability company and in good standing under the laws of the State of Delaware with full power and authority to own its assets and conduct its business, is duly qualified as a foreign organization in good standing in all jurisdictions to the extent such qualification is necessary to comply with its obligations under this Agreement except where the failure to be so qualified would not have a material adverse effect on its ability to perform its obligations hereunder, and WDCPF has taken all necessary action to authorize the execution and delivery of, and performance under, the Operative Documents and has duly executed and delivered each Operative Document, and has the power and authority to execute, deliver and perform under each Operative Document and all the transactions contemplated hereby and thereby;
(B) Assuming the due authorization, execution and delivery of this Agreement by the Purchaser, this Agreement will constitute a legal, valid and binding obligation of WDCPF, enforceable against WDCPF in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, (B) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (C) public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the
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provisions of this Agreement that purport to provide indemnification for securities laws liabilities;
(C) The execution and delivery of each Operative Document by WDCPF and the performance of its obligations hereunder and thereunder will not conflict with any provision of any law or regulation to which WDCPF is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of WDCPF’s organizational documents or any agreement or instrument to which WDCPF is a party or by which it is bound, or any order or decree applicable to WDCPF, or result in the creation or imposition of any lien on any of WDCPF’s assets or property, in each case which would materially and adversely affect the ability of WDCPF to carry out the transactions contemplated by the Operative Documents;
(D) There is no action, suit, proceeding or investigation pending or, to WDCPF’s knowledge, threatened against WDCPF in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of the Mortgage Loans or the ability of WDCPF to carry out the transactions contemplated by each Operative Document;
(E) WDCPF is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that, in WDCPF’s good faith and reasonable judgment, is likely to materially and adversely affect the condition (financial or other) or operations of WDCPF or its properties or might have consequences that, in WDCPF’s good faith and reasonable judgment, is likely to materially and adversely affect its performance under any Operative Document;
(F) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by WDCPF of, or compliance by WDCPF with, each Operative Document or the consummation of the transactions contemplated hereby or thereby, other than those which have been obtained by WDCPF; and
(G) WDCPF has no actual knowledge that any statement, report, officer’s certificate or other document prepared and furnished or to be furnished by WDCPF or the Seller in connection with the transactions contemplated hereby (including, without limitation, any financial cash flow models and underwriting file abstracts furnished by such Seller) (collectively, the “Provided Information”) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading, or, to the extent that it has become aware of any material misstatement or omission in any Provided Information, WDCPF has notified the Depositor in writing of such material misstatement or omission at least one Business Day prior to the Time of Sale (as defined in the Indemnification Agreement) and updated such Provided
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Information or the material misstatement or omission has been corrected in the Time of Sale Information (as defined in the Indemnification Agreement).
(b) The Purchaser represents and warrants to the Seller as of the Closing Date that:
(i) The Purchaser is a corporation duly organized, validly existing and 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, 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 be so qualified would not have a material adverse effect on the ability of the Purchaser to perform its obligations hereunder, and the Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement by it, and has duly executed and delivered this Agreement, and has the power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby;
(ii) Assuming the due authorization, execution and delivery of this Agreement by the Seller, this Agreement will constitute a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement by the Purchaser and the performance of its obligations hereunder will not conflict with any provision of any law or regulation to which the Purchaser is subject, or conflict with, result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any of the Purchaser’s organizational documents or any agreement or instrument to which the Purchaser is a party or by which it is bound, or any order or decree applicable to the Purchaser, or result in the creation or imposition of any lien on any of the Purchaser’s assets or property, in each case which would materially and adversely affect the ability of the Purchaser to carry out the transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation pending or, to the Purchaser’s knowledge, threatened against the Purchaser in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the validity of this Agreement or any action taken in connection with the obligations of the Purchaser contemplated herein, or which would be likely to impair materially the ability of the Purchaser to perform under the terms of this Agreement;
(v) The Purchaser is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Purchaser or its properties or
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might have consequences that would materially and adversely affect its performance under any Operative Document;
(vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Purchaser of or compliance by the Purchaser with this Agreement or the consummation of the transactions contemplated by this Agreement other than those that have been obtained by the Purchaser; and
(vii) The Purchaser (A) prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and meeting the requirements of that Form 15G, Rule 15Ga-2, any other rules and regulations of the Commission and the Exchange Act; (B) provided a copy of the final draft of each such Form 15G to the Underwriters and the Initial Purchasers at least 7 Business Days before the first sale in the offering contemplated by the Offering Documents; and (C) furnished each such Form 15G to the Commission on XXXXX at least 5 Business Days before the first sale in the offering contemplated by the Offering Documents as required by Rule 15Ga-2.
(c) The Seller further makes the representations and warranties as to the Mortgage Loans set forth in Exhibit B to this Agreement as of the Cut-Off Date or such other date set forth in Exhibit B to this Agreement, which representations and warranties are subject to the exceptions thereto set forth in Exhibit C to this Agreement.
(d) Pursuant to the Pooling and Servicing Agreement, if (i) any party thereto discovers or receives notice alleging that any document constituting a part of a Mortgage File has not been properly executed, is missing, contains information that does not conform in any material respect with the corresponding information set forth in the Mortgage Loan Schedule, or does not appear to be regular on its face (each, a “Document Defect”), or discovers or receives notice alleging a breach of any representation or warranty of the Seller made pursuant to Section 6(c) of this Agreement with respect to any Mortgage Loan (a “Breach”) or (ii) the Special Servicer or the Purchaser receives a Repurchase Request, such party is required to give prompt written notice thereof to the Seller, the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event), the parties to the Pooling and Servicing Agreement, any related Companion Loan Holder (if applicable) and the Rule 17g-5 Information Provider.
(e) Pursuant to the Pooling and Servicing Agreement, the Special Servicer is required to determine whether any such Document Defect or Breach with respect to any Mortgage Loan materially and adversely affects, or such Document Defect is deemed in accordance with Section 2.03 of the Pooling and Servicing Agreement to materially and adversely affect, the value of the Mortgage Loan or any related REO Property or the interests of the Certificateholders therein or causes any Mortgage Loan to fail to be a Qualified Mortgage (any such Document Defect shall constitute a “Material Document Defect” and any such Breach shall constitute a “Material Breach”). If such Document Defect or Breach has been determined to be a Material Document Defect or Material Breach, then the Special Servicer will be required to give prompt written notice thereof to the Seller, the parties to the Pooling and Servicing
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Agreement and the Controlling Class Representative (prior to the occurrence and continuance of a Consultation Termination Event). Promptly upon becoming aware of any such Material Document Defect or Material Breach (including through a written notice given by the Master Servicer or the Special Servicer, as provided above if the Document Defect or Breach identified therein is a Material Document Defect or Material Breach, as the case may be), the Seller shall, not later than 90 days from the earlier of the Seller’s discovery or receipt of notice of, and receipt of a demand to take action with respect to, such Material Document Defect or Material Breach, as the case may be (or, in the case of a Material Document Defect or Material Breach relating to a Mortgage Loan not being a Qualified Mortgage, not later than 90 days from any party discovering such Material Document Defect or Material Breach; provided that, if such discovery is by any party other than the Seller, the Seller receives notice thereof in a timely manner), cure the same in all material respects (which cure shall include payment of any losses and Additional Trust Fund Expenses associated therewith) or, if such Material Document Defect or Material Breach, as the case may be, cannot be cured within such 90 day period, the Seller shall either (i) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan (provided that in no event shall any such substitution occur later than the second anniversary of the Closing Date) and pay the Master Servicer, for deposit into the Collection Account, any Substitution Shortfall Amount in connection therewith or (ii) repurchase the affected Mortgage Loan or any related REO Property (or the Trust’s interest therein) at the applicable Purchase Price by wire transfer of immediately available funds to the Collection Account; provided, however, that if (i) such Material Document Defect or Material Breach is capable of being cured but not within such 90 day period, (ii) such Material Document Defect or Material Breach is not related to any Mortgage Loan’s not being a Qualified Mortgage and (iii) the Seller has commenced and is diligently proceeding with the cure of such Material Document Defect or Material Breach within such 90 day period, then the Seller shall have an additional 90 days to complete such cure (or, in the event of a failure to so cure, to complete such repurchase of the related Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described above) it being understood and agreed that, in connection with the Seller’s receiving such additional 90 day period, the Seller shall deliver an Officer’s Certificate to the Trustee, the Special Servicer and the Certificate Administrator setting forth the reasons such Material Document Defect or Material Breach is not capable of being cured within the initial 90 day period and what actions the Seller is pursuing in connection with the cure thereof and stating that the Seller anticipates that such Material Document Defect or Material Breach will be cured within such additional 90 day period; and provided, further, that, if any such Material Document Defect is still not cured after the initial 90 day period and any such additional 90 day period solely due to the failure of the Seller to have received the recorded document, then the Seller shall be entitled to continue to defer its cure, substitution or repurchase obligations in respect of such Document Defect so long as the Seller certifies to the Trustee, the Special Servicer and the Certificate Administrator every 30 days thereafter that the Document Defect is still in effect solely because of its failure to have received the recorded document and that the Seller is diligently pursuing the cure of such defect (specifying the actions being taken), except that no such deferral of cure, substitution or repurchase may continue beyond the date that is 18 months following the Closing Date. Any such repurchase or substitution of a Mortgage Loan shall be on a whole loan, servicing released basis. The Seller shall have no obligation to monitor the Mortgage Loans regarding the existence of a Breach or a Document Defect, but if the Seller discovers a Material Breach or Material Document Defect with respect to a Mortgage Loan, it shall notify the Purchaser.
| -13- |
Subject to the Seller’s right to cure set forth above in this Section 6(e), and further subject to Sections 2.01(b) and 2.01(c) of the Pooling and Servicing Agreement, failure of the Seller to deliver the documents referred to in clauses (1), (2), (7), (8), (18) and (19) in the definition of “Mortgage File” in the Pooling and Servicing Agreement in accordance with this Agreement and the Pooling and Servicing Agreement for any Mortgage Loan shall be deemed a Material Document Defect; provided, however, that no Document Defect (except such deemed Material Document Defect described above) shall be considered to be a Material Document Defect unless the document with respect to which the Document Defect exists is required in connection with an imminent enforcement of the lender’s rights or remedies under the related Mortgage Loan, defending any claim asserted by any Mortgagor or third party with respect to the Mortgage Loan, establishing the validity or priority of any lien on any collateral securing the Mortgage Loan or for any immediate significant servicing obligation.
(f) In connection with any repurchase or substitution of one or more Mortgage Loans pursuant to this Section 6, the Pooling and Servicing Agreement shall provide that the Trustee, the Certificate Administrator, the Custodian, the Master Servicer and the Special Servicer shall each tender to the repurchasing entity, upon delivery to each of them of a receipt executed by the repurchasing or substituting entity evidencing such repurchase or substitution, all portions of the Mortgage File, the Servicing File and other documents and all Escrow Payments and reserve funds pertaining to such Mortgage Loan possessed by it, and each document that constitutes a part of the Mortgage File shall be endorsed or assigned to the extent necessary or appropriate to the repurchasing or substituting entity or its designee in the same manner, but only if the respective documents have been previously assigned or endorsed to the Trustee, and pursuant to appropriate forms of assignment, substantially similar to the manner and forms pursuant to which such documents were previously assigned to the Trustee or as otherwise reasonably requested to effect the retransfer and reconveyance of the Mortgage Loan and the security therefor to the Seller or its designee; provided that such tender by the Trustee and the Custodian shall be conditioned upon its receipt from the Master Servicer of a Request for Release and an Officer’s Certificate to the effect that the requirements for repurchase or substitution, as the case may be, have been satisfied.
(g) The representations and warranties of the parties hereto shall survive the execution and delivery and any termination of this Agreement and shall inure to the benefit of the respective parties, notwithstanding any restrictive or qualified endorsement on the Notes or Assignment of Mortgage or the examination of the Mortgage Files.
(h) Each party hereto agrees to promptly notify the other party of any breach of a representation or warranty contained in Section 6(c) of this Agreement. The Seller’s obligation to cure any Material Breach or Material Document Defect or to repurchase or substitute any affected Mortgage Loan pursuant to this Section 6, and WDCPF’s guarantee of such obligations pursuant to Section 24, shall constitute the sole remedy available to the Purchaser in connection with a breach of any of the Seller’s representations or warranties contained in Section 6(c) of this Agreement or a Document Defect with respect to any Mortgage Loan; provided that the foregoing shall not limit the indemnification available pursuant to Section 25 hereof.
| -14- |
(i) The Seller shall promptly notify the Depositor if (i) the Seller receives a Repurchase Communication of a Repurchase Request (other than from the Depositor), (ii) the Seller repurchases or replaces a Mortgage Loan, (iii) the Seller receives a Repurchase Communication of a Repurchase Request Withdrawal (other than from the Depositor) or (iv) the Seller rejects or disputes any Repurchase Request. Each such notice shall be given no later than the tenth (10th) Business Day after (A) with respect to clauses (i) and (iii) of the preceding sentence, receipt of a Repurchase Communication of a Repurchase Request or a Repurchase Request Withdrawal, as applicable, and (B) with respect to clauses (ii) and (iv) of the preceding sentence, the occurrence of the event giving rise to the requirement for such notice, and shall include (1) the identity of the related Mortgage Loan, (2) the date (x) such Repurchase Communication of such Repurchase Request or Repurchase Request Withdrawal was received, (y) the related Mortgage Loan was repurchased or replaced or (z) the Repurchase Request was rejected or disputed, as applicable, and (3) if known, the basis for (x) the Repurchase Request (as asserted in the Repurchase Request) or (y) any rejection or dispute of a Repurchase Request, as applicable.
The Seller shall provide to the Depositor and the Certificate Administrator the Seller’s “Central Index Key” number assigned by the Securities and Exchange Commission and a true, correct and complete copy of the relevant portions of any Form ABS-15G that the Seller is required to file with the Securities and Exchange Commission with respect to the Mortgage Loans on or before the date that is five (5) Business Days before the date such Form ABS-15G is required to be filed with the Securities and Exchange Commission. For the avoidance of doubt, the foregoing obligation shall not prohibit the Seller from filing a Form ABS-15G on or prior to the date on which such copy is provided to the Depositor and the Certificate Administrator.
In addition, the Seller shall provide the Depositor, upon request, such other information in its possession as would permit the Depositor to comply with its obligations under Rule 15Ga-1 under the Exchange Act to disclose fulfilled and unfulfilled repurchase requests. Any such information requested shall be provided as promptly as practicable after such request is made.
The Seller agrees that no 15Ga-1 Notice Provider will be required to provide information in a 15Ga-1 Notice that is protected by the attorney-client privilege or attorney work product doctrines. In addition, the Seller hereby acknowledges that (i) any 15Ga-1 Notice provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement is so provided only to assist the Seller, the Depositor and their respective Affiliates to comply with Rule 15Ga-1 under the Exchange Act, Items 1104 and 1121 of Regulation AB and any other requirement of law or regulation and (ii)(A) no action taken by, or inaction of, a 15Ga-1 Notice Provider and (B) no information provided pursuant to Section 2.03(a) of the Pooling and Servicing Agreement by a 15Ga-1 Notice Provider in a 15Ga-1 Notice shall be deemed to constitute a waiver or defense to the exercise of any legal right the 15Ga-1 Notice Provider may have with respect to this Agreement, including with respect to any Repurchase Request that is the subject of a 15Ga-1 Notice.
Each party hereto agrees that the receipt of a 15Ga-1 Notice or the delivery of any notice required to be delivered pursuant to this Section 6(i) shall not, in and of itself, constitute
| -15- |
delivery of notice of, receipt of notice of, or knowledge of the Seller of, any Material Document Defect or Material Breach.
Each party hereto agrees and acknowledges that, as of the date of this Agreement, the “Central Index Key” number of the Trust is 0001655153.
“Repurchase Communication” means, for purposes of this Section 6(i) only, any communication, whether oral or written, which need not be in any specific form.
(a) Each of the obligations of the Seller and/or WDCPF required to be performed by either or both of them at or prior to the Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied with and all of the representations and warranties of the Seller and/or WDCPF under this Agreement shall, subject to any applicable exceptions set forth on Exhibit C to this Agreement, be true and correct in all material respects as of the Closing Date or as of such other date as of which such representation is made under the terms of Exhibit B to this Agreement, and no event shall have occurred as of the Closing Date which, with notice or passage of time, would constitute a default on the part of the Seller or WDCPF under this Agreement, and the Purchaser shall have received a certificate from each of the Seller and WDCPF to the foregoing effect signed by an authorized officer of the Seller or WDCPF, as applicable, substantially in the form of Exhibit D to this Agreement.
(b) The Pooling and Servicing Agreement (to the extent it affects the obligations of the Seller hereunder), in such form as is agreed upon and acceptable to the Purchaser, the Seller, the Underwriters, the Initial Purchasers and their respective counsel in their reasonable discretion, shall be duly executed and delivered by all signatories as required pursuant to the terms thereof.
(c) The Purchaser shall have received the following additional closing documents:
(i) copies of the Seller’s and WDCPF’s Certificate of Formation and all amendments, revisions, restatements and supplements thereof, certified as of a recent date by the Secretary of the Seller;
| -16- |
(ii) a certificate as of a recent date of the Secretary of State of the State of Delaware to the effect that each of the Seller and WDCPF is duly organized, existing and in good standing in the State of Delaware;
(iii) an officer’s certificate of each of the Seller and WDCPF in form reasonably acceptable to the Underwriters, the Initial Purchasers and each Rating Agency;
(iv) an opinion of counsel of the Seller and WDCPF, subject to customary exceptions and carve-outs, in form reasonably acceptable to the Underwriters, the Initial Purchasers and each Rating Agency; and
(v) a letter from counsel to the Seller and WDCPF substantially to the effect that (a) nothing has come to such counsel’s attention that would lead such counsel to believe that the Free Writing Prospectus, the Prospectus Supplement, the Preliminary Offering Circular or the Final Offering Circular (each as defined in the Indemnification Agreement), as of the date thereof or as of the Closing Date (or, in the case of the Free Writing Prospectus or the Preliminary Offering Circular, solely as of the time of sale) contained or contain, as applicable, with respect to the Seller, the Mortgage Loans, any related Companion Loan(s), the related Mortgagors or the related Mortgaged Properties, any untrue statement of a material fact or omitted or omits, as applicable, to state a material fact necessary in order to make the statements therein relating to the Seller, the Mortgage Loans, any related Companion Loan(s), the related Mortgagors or the related Mortgaged Properties, in the light of the circumstances under which they were made, not misleading and (b) the information relating to the Mortgage Loans (including any related Whole Loan, including, without limitation, the servicing terms thereof if not serviced under the Pooling and Servicing Agreement, including identification of the parties to the related Other Pooling and Servicing Agreement), the related Mortgagors, the related Mortgaged Properties or the Seller and its affiliates (to the extent such affiliate is not an Underwriter or Initial Purchaser) in the Prospectus Supplement appears to be appropriately responsive in all material respects to the applicable requirements of Regulation AB.
(d) The Public Certificates shall have been concurrently issued and sold pursuant to the terms of the Underwriting Agreement. The Private Certificates shall have been concurrently issued and sold pursuant to the terms of the Certificate Purchase Agreement.
(e) The Seller and WDCPF shall have executed and delivered concurrently herewith the Indemnification Agreement.
(f) The Seller and WDCPF shall furnish the Purchaser, the Underwriters and the Initial Purchasers with such other certificates of its officers or others and such other documents and opinions to evidence fulfillment of the conditions set forth in this Agreement as the Purchaser and its counsel may reasonably request.
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SECTION 9 Closing. The closing for the purchase and sale of the Mortgage Loans shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place and time as the parties shall agree.
If the Seller or WDCPF, as applicable, elects to exercise its rights under Section 11.14 of the Pooling and Servicing Agreement, then the Seller or WDCPF, as applicable, shall pay the reasonable costs and expenses (if any) of the Depositor, Master Servicer, Special Servicer and Trustee resulting from such parties’ obligations to cooperate with the Seller or WDCPF, as applicable, under Section 11.14 of the Pooling and Servicing Agreement.
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with a valid and enforceable provision which most closely resembles, and which has the same economic effect as, the provision held to be invalid or unenforceable.
SECTION 12 Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES TO THIS AGREEMENT, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES TO THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14 Submission to Jurisdiction. EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (III) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (IV) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER AND AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY MANNER PERMITTED BY LAW.
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by the Seller, WDCPF, the Purchaser and their permitted successors and assigns. Any Person into which the Seller or WDCPF may be merged or consolidated, or any Person resulting from any merger, conversion or consolidation to which the Seller or WDCPF may become a party, or any Person succeeding to all or substantially all of the business of the Seller or WDCPF, shall be the successor to the Seller or WDCPF, as applicable, hereunder without any further act. The warranties and representations and the agreements made by the Seller or WDCPF herein shall survive delivery of the Mortgage Loans to the Trustee until the termination of the Pooling and Servicing Agreement, but shall not be further assigned by the Trustee to any Person. The guaranty and indemnity provided for in Sections 24 and 25 of this Agreement shall inure to the benefit of the Purchaser and shall be enforceable by the Purchaser (including without limitation, the Trustee) or any special servicer or master servicer on its behalf.
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the Seller or WDCPF, on the one hand and the Purchaser on the other hand shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except as set forth in Section 6(h) of this Agreement, the rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which any party would otherwise have pursuant to law or equity. No notice to or demand on any party in any case shall entitle such party to any other or further notice or demand in similar or other circumstances, or constitute a waiver of the right of either party to any other or further action in any circumstances without notice or demand.
(b) This guarantee shall be a guaranty of payment and performance and not of collection, and the obligations of WDCPF under this guarantee shall be continuing, absolute and unconditional. WDCPF waives any and all defenses it may have arising out of: (i) the validity, regularity or enforceability of this Agreement; (ii) the absence of any action to enforce the same; (iii) the rendering of any judgment against the Seller or any action to enforce the same; (iv) any waiver or consent by the Purchaser or any amendment or other modification to this Agreement;
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(v) any defense to payment hereunder based upon suretyship defenses; (vi) the bankruptcy or insolvency of the Seller, (vii) any defense based on (1) the corporate status of the Seller, (2) the power and authority of the Seller to enter into this Agreement and to perform its obligations hereunder or (3) the legality, validity and enforceability of the Seller’s obligation under this Agreement, or (viii) any other defense, circumstances or limitation of any nature whatsoever that would constitute a legal or equitable discharge of a guarantor or other third party obligor. This guarantee shall continue to remain in full force and effect in accordance with its terms notwithstanding the renewal, extension, modification, or waiver, in whole or in part, of any of the Seller’s obligations under this Agreement or the Pooling and Servicing Agreement which are subject to this guarantee.
(c) WDCPF waives (i) notice of acceptance of the guaranty provided for in this Section 24 and notice of any obligations to which it may apply, (ii) diligence, presentment, demand for payment, protest and notice of nonpayment or dishonor and all other notices and demands relating to this Agreement and (iii) any requirement that the Purchaser proceed first against the Seller under this Agreement or otherwise exhaust any right, power or remedy under this Agreement before proceeding hereunder.
(d) WDCPF agrees to pay on demand, all expenses (including reasonable legal fees) in any way relating to the enforcement or protection of the rights of the Purchaser hereunder or with respect to any obligations.
* * * * * *
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| CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. | |||
| By: | /s/ Xxxxxxx X. Xxx | ||
| Name: Xxxxxxx X. Xxx | |||
| Title: Vice President | |||
| XXXXXX & DUNLOP COMMERCIAL PROPERTY FUNDING I CS, LLC | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Senior Vice President | |||
| XXXXXX & DUNLOP COMMERCIAL PROPERTY FUNDING, LLC | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: Senior Vice President | |||
CSAIL 2015-C4: WDCPF I CS MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
MORTGAGE LOAN SCHEDULE
| A-1 |
| Loan ID # | Originator/Loan Seller | Mortgagor Name | Property Address | City | State | Zip Code | County | Property Name | Size | Measure | Mortgage Rate in Effect at Origination (%) | Net Mortgage Rate in Effect at the Cut-off Date (%) | Companion Loan Mortgage Rate in Effect at Origination (%) | Companion Loan Net Mortgage Rate in Effect at the Cut-off Date (%) | Original Principal Balance | Cut-off Principal Balance | Original Term | Remaining Term | Maturity/ARD Date | Amortiziation Term | Remaining Amortization Term for Balloon Loans | Companion Loan Cut-off Principal Balance | Companion Loan Original Term | Companion Loan Remaining Term | Companion Loan Maturity/ARD Date | Companion Loan Amortiziation Term | Companion Loan Remaining Amortization Term for Balloon Loans | Monthly Payment | Serviced Whole Loan | Servicing Fee Rate | ||||||||||||||||||||||||||||||
| 3 | Xxxxxx & Dunlop | Jefferson-Marumsco 1, LLC | 00000 Xxxxxxxxx Xxxxx Xxxxxxx | Xxxxxxxxxx | XX | 00000 | Prince Xxxxxxx | Xxxxxxxx Xxxxx | 000,000 | Xxxxxx Feet | 4.7400% | 4.68735% | 4.7400% | 4.68735% | 34,650,000 | 34,650,000 | 120 | 120 | 11/1/2025 | 360 | 360 | NAP | NAP | NAP | NAP | NAP | NAP | 180,542.01 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 7 | Xxxxxx & Dunlop | Continental 157 Fund LLC | 00000 Xxxxxxxx Xxxx | Xxx Xxxxxxx | XX | 00000 | Bexar | Springs at Alamo Ranch | 232 | Units | 4.3610% | 4.30835% | 4.3610% | 4.30835% | 23,400,000 | 23,339,516 | 120 | 118 | 9/1/2025 | 360 | 358 | NAP | NAP | NAP | NAP | NAP | NAP | 116,639.60 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 9 | Xxxxxx & Dunlop | Summit Oaktree I, LLC and Summit Oaktree II, LLC | 0000 Xxxxx Xxxx Xxxxxxxxx | Xxxxxxxxxxx | XX | 00000 | Bernalillo | Oak Tree Park | 320 | Units | 4.4540% | 4.40135% | 4.4540% | 4.40135% | 21,187,500 | 21,187,500 | 120 | 117 | 8/1/2025 | 360 | 360 | NAP | NAP | NAP | NAP | NAP | NAP | 106,775.63 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 26 | Xxxxxx & Dunlop | Sundown Capital, LLC | 15300-15500 Xxxx Xxxxxx Xxxx | Xxx Xxxxxx | XX | 00000 | Waukesha | Moorland Commons | 126,382 | Square Feet | 4.3220% | 4.26935% | 4.3220% | 4.26935% | 12,150,000 | 12,150,000 | 120 | 117 | 8/1/2025 | 360 | 360 | NAP | NAP | NAP | NAP | NAP | NAP | 60,283.94 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 00 | Xxxxxx & Xxxxxx | XXX Xxxxxxxxxx LLC | 0000 Xxxxx Xxxxx Xxxx | Xxxxxxxxxx | XX | 00000 | Xxxxxx | Xxxxxxxxxx Xxxxx | 000,000 | Xxxxxx Feet | 4.6800% | 4.62735% | 4.6800% | 4.62735% | 9,975,000 | 9,975,000 | 120 | 120 | 11/1/2025 | 360 | 360 | NAP | NAP | NAP | NAP | NAP | NAP | 51,614.28 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 00 | Xxxxxx & Xxxxxx | XXXX-Xxxxxxxxx LLC | 0000 Xxxxxxxxx Xxxxx | Xxxxxxxxx | XX | 00000 | Fairfax | Southgate Business Center | 78,420 | Square Feet | 4.5080% | 4.45535% | 4.5080% | 4.45535% | 7,300,000 | 7,291,315 | 120 | 119 | 10/1/2025 | 360 | 359 | NAP | NAP | NAP | NAP | NAP | NAP | 37,022.74 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 00 | Xxxxxx & Xxxxxx | XXXX-Xxxxxx III LLC | 0000 Xxxxxxxx Xxxx | Xxxxxxxx | XX | 00000 | Xxxxxx | Xxxxxx Business Center III | 54,381 | Square Feet | 4.5080% | 4.45535% | 4.5080% | 4.45535% | 6,800,000 | 6,791,910 | 120 | 119 | 10/1/2025 | 360 | 359 | NAP | NAP | NAP | NAP | NAP | NAP | 34,486.93 | NAP | 0.00500% | ||||||||||||||||||||||||||||||
| 64 | Xxxxxx & Dunlop | Old Xxxxxxx - Xxxx, LLC | 0000 Xxxxxx Xxxx | Xxxxx Xxxxxxxx | XX | 00000 | Xxxxxx | Old Orchard Apartments | 168 | Units | 4.5140% | 4.46135% | 4.5140% | 4.46135% | 4,200,000 | 4,200,000 | 120 | 117 | 8/1/2025 | 360 | 360 | NAP | NAP | NAP | NAP | NAP | NAP | 21,315.73 | NAP | 0.00500% |
| UPFRONT ESCROW | PERIODIC ESCROW | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Loan ID # | Originator/Loan Seller | Mortgagor Name | Property Address | Subservicing Fee | Accrual Type | ARD Loan (Y/N) | Revised Rate (%) | Title Type | Crossed Collateralized Loan | Cross Defaulted Loan | Guarantor | Letter of Credit | Upfront CapEx Reserve | Upfront Eng. Reserve | Upfront Envir. Reserve | Upfront TI/LC Reserve | Upfront RE Tax Reserve | Upfront Ins. Reserve | Upfront Debt Service Reserve | Upfront Other Reserve | Monthly Capex Reserve | Monthly Envir. Reserve | Monthly TI/LC Reserve | Monthly RE Tax Reserve | Monthly Ins. Reserve | Monthly Debt Service Reserve | Monthly Other Reserve | Grace (Late Payment) | Cash-Management Account or Lockbox In-place | General Property Type | Defeasance Permitted | Final Maturity Date | ||||||||||||||||||||||||||||||||
| 3 | Xxxxxx & Dunlop | Jefferson-Marumsco 1, LLC | 00000 Xxxxxxxxx Xxxxx Xxxxxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | Xxxxxx X. Xxxxxxx | Yes | 0 | 69,125 | 300,000 | 0 | 162,570 | 30,862 | 0 | 925,000 | 4,550 | 0 | 14,312 | 32,514 | 5,144 | 0 | 0 | 5 | Yes | Retail | Yes | 11/1/2025 | ||||||||||||||||||||||||||||||||
| 7 | Xxxxxx & Dunlop | Continental 157 Fund LLC | 00000 Xxxxxxxx Xxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | Continental Properties Company, Inc. | No | 0 | 0 | 0 | 0 | 483,331 | 24,684 | 0 | 0 | 4,060 | 0 | 0 | 53,703 | 3,086 | 0 | 0 | 0 | Yes | Multifamily | Yes | 9/1/2025 | ||||||||||||||||||||||||||||||||
| 9 | Xxxxxx & Dunlop | Summit Oaktree I, LLC and Summit Oaktree II, LLC | 0000 Xxxxx Xxxx Xxxxxxxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxx, Xxxx X. Xxxxx | No | 0 | 7,500 | 0 | 0 | 58,052 | 59,850 | 0 | 0 | 7,147 | 0 | 0 | 14,513 | 4,988 | 0 | 0 | 0 | Yes | Multifamily | Yes | 8/1/2025 | ||||||||||||||||||||||||||||||||
| 26 | Xxxxxx & Dunlop | Sundown Capital, LLC | 15300-15500 West Beloit Road | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | Xxxxxx X. Xxxxx | No | 0 | 0 | 0 | 0 | 66,005 | 14,778 | 0 | 782,152 | 2,106 | 0 | 7,559 | 16,501 | 1,847 | 0 | Springing | 0 | Yes | Retail | Yes | 8/1/2025 | ||||||||||||||||||||||||||||||||
| 33 | Xxxxxx & Dunlop | TBP Buckingham LLC | 0000 Xxxxx Xxxxx Xxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | Xxx Xxxxxxxx, Xxx Xxxxxxxxx | No | 0 | 92,812 | 0 | 285,750 | 0 | 10,596 | 0 | 0 | 2,505 | 0 | 4,978 | 18,803 | 5,298 | 0 | Springing | 0 | Yes | Retail | Yes | 11/1/2025 | ||||||||||||||||||||||||||||||||
| 00 | Xxxxxx & Xxxxxx | XXXX-Xxxxxxxxx LLC | 0000 Xxxxxxxxx Xxxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | BRIT Limited Partnership | No | 60,000 | 0 | 0 | 225,000 | 43,836 | 0 | 0 | 0 | Springing | 0 | Springing | 8,767 | Springing | 0 | Springing | 0 | Yes | Industrial | No | 10/1/2025 | ||||||||||||||||||||||||||||||||
| 48 | Xxxxxx & Xxxxxx | XXXX-Xxxxxx III LLC | 0000 Xxxxxxxx Xxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | BRIT Limited Partnership | No | 45,000 | 0 | 0 | 241,350 | 0 | 0 | 0 | 0 | Springing | 0 | Springing | 6,309 | Springing | 0 | Springing | 0 | Yes | Office | No | 10/1/2025 | ||||||||||||||||||||||||||||||||
| 64 | Xxxxxx & Dunlop | Old Xxxxxxx - Xxxx, LLC | 0000 Xxxxxx Xxxx | 0.04000% | Actual/360 | No | 0.00000% | Fee | No | No | Xxxxx X. Xxxxx | No | 0 | 39,938 | 0 | 0 | 71,982 | 10,730 | 0 | 0 | 4,452 | 0 | 0 | 10,283 | Springing | 0 | 0 | 0 | Yes | Multifamily | Yes | 8/1/2025 | ||||||||||||||||||||||||||||||||
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
| B-1 |
whole or materially interfere with the mortgagee’s realization of the principal benefits and/or security provided thereby (clauses (i) and (ii) collectively, the “Insolvency Qualifications”).
Except as set forth in the immediately preceding sentences, there is no valid offset, defense, counterclaim or right of rescission available to the related Mortgagor with respect to any of the related Notes, Mortgages or other Mortgage Loan Documents, including, without limitation, any such valid offset, defense, counterclaim or right based on intentional fraud by the Seller in connection with the origination of the Mortgage Loan, that would deny the mortgagee the principal benefits intended to be provided by the Note, Mortgage or other Mortgage Loan Documents.
| B-2 |
origination was, and as of the Cut-off Date to the Seller’s knowledge, is free and clear of any recorded mechanics’ liens, recorded materialmen’s liens and other recorded encumbrances, and to the Seller’s knowledge and subject to the rights of tenants, no rights exist which under law could give rise to any such lien or encumbrance that would be 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). 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 property described therein subject to Permitted Encumbrances, except as such enforcement may be limited by Insolvency Qualifications subject to the limitations described in clause (11) below. Notwithstanding anything herein to the contrary, no representation is made as to the perfection of any security interest in rents or other personal property to the extent that possession or control of such items or actions other than the filing of Uniform Commercial Code financing statements is required in order to effect such perfection.
At the time of the assignment of the Mortgage Loans to the Depositor, the Seller had good and marketable title to and was the sole owner and holder of, each Mortgage Loan, free and clear of any pledge, lien, encumbrance or security interest (subject to certain agreements regarding servicing and/or defeasance successor borrower rights as provided in the Pooling and Servicing Agreement, subservicing agreements permitted thereunder and any Servicing Rights Purchase Agreement, dated prior to or as of the Closing Date, among the Depositor, the Master Servicer and the Seller) and such assignment validly and effectively transfers and conveys all legal and beneficial ownership of the Mortgage Loans to the Depositor free and clear of any pledge, lien, encumbrance or security interest (subject to certain agreements regarding servicing as provided in the Pooling and Servicing Agreement, subservicing agreements permitted thereunder and any Servicing Rights Purchase Agreement, dated prior to or as of the Closing Date, among the Depositor, the Master Servicer and the Seller).
| B-3 |
the Mortgaged Property or the security intended to be provided by such Mortgage or with the current ability of the related Mortgaged Property to generate net cash flow sufficient to service the related Mortgage Loan or the Mortgagor’s ability to pay its obligations when they become due (collectively, the “Permitted Encumbrances”). Except as contemplated by clause (f) of the preceding sentence none of the Permitted Encumbrances are mortgage liens that are senior to or coordinate and co-equal with the lien of the related Mortgage. Such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no claims have been made by the Seller thereunder and no claims have been paid thereunder. Neither the Seller, nor to the Seller’s knowledge, any other holder of the Mortgage Loan, has done, by act or omission, anything that would materially impair the coverage under such Title Policy. Each Title Policy contains no exclusion for, or affirmatively insures (except for any Mortgaged Property located in a jurisdiction where such affirmative insurance is not available in which case such exclusion may exist), (a) that the Mortgaged Property shown on the survey is the same as the property legally described in the Mortgage, and (b) to the extent that the Mortgaged Property consists of two or more adjoining parcels, such parcels are contiguous.
| B-4 |
financing statement was in suitable form for filing in the filing office in which such financing statement was filed.
An engineering report or property condition assessment was prepared in connection with the origination of each Mortgage Loan no more than twelve months prior to the Cut-off Date, which indicates that, except as set forth in such engineering report or with respect to which repairs were required to be reserved for or made, all building systems for the improvements of each related Mortgaged Property are in good working order, and further indicates that each related Mortgaged Property (a) is free of any material damage, (b) is in good repair and condition, and (c) is free of structural defects, except to the extent (i) any damage or deficiencies that would not materially and adversely affect the use, operation or value of the Mortgaged Property or the security intended to be provided by such Mortgage or repairs with respect to such damage or deficiencies estimated to cost less than $50,000 in the aggregate per Mortgaged Property; (ii) such repairs have been completed; or (iii) escrows in an aggregate amount consistent with the standards utilized by the Seller with respect to similar loans it originates for securitization have been established, which escrows will in all events be in an aggregate amount not less than the estimated cost of such repairs. The Seller has no knowledge of any material issues with the physical condition of the Mortgaged Property that the Seller believes would have a material adverse effect on the use, operation or value of the Mortgaged Property other than those disclosed in the engineering report and those addressed in sub-clauses (i), (ii) and (iii) of the preceding sentence.
| B-5 |
proceeding, arbitration or governmental investigation involving any Mortgagor, guarantor, or Mortgaged Property, an adverse outcome of which would reasonably be expected to materially and adversely affect (a) title to the Mortgaged Property, (b) the validity or enforceability of the Mortgage, (c) such Mortgagor’s ability to perform under the related Mortgage Loan, (d) such guarantor’s ability to perform under the related guaranty, (e) the use, operation or value of the Mortgaged Property, (f) the principal benefit of the security intended to be provided by the Mortgage Loan Documents, (g) the current ability of the Mortgaged Property to generate net cash flow sufficient to service such Mortgage Loan, or (h) the current principal use of the Mortgaged Property.
| B-6 |
such endorsements as are necessary to avoid the operation of any coinsurance provisions with respect to the related Mortgaged Property.
Each related Mortgaged Property is also covered, and required to be covered pursuant to the related Mortgage Loan Documents, by business interruption or rental loss insurance which (i) covers a period of not less than 12 months (or with respect to each Mortgage Loan with a principal balance of $35 million or more, 18 months); (ii) for a Mortgage Loan with a principal balance of $50 million or more contains a 180-day “extended period of indemnity”; and (iii) covers the actual loss sustained during restoration.
If any material part of the improvements, exclusive of a parking lot, located on a Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, the related Mortgagor is required to maintain insurance in the maximum amount available under the National Flood Insurance Program, plus such additional excess flood coverage in an amount as is generally required by the Seller originating mortgage loans for securitization.
If windstorm and/or windstorm related perils and/or “named storms” are excluded from the primary property damage insurance policy the Mortgaged Property is insured by a separate windstorm insurance policy issued by an insurer meeting the Insurance Rating Requirements or endorsement covering damage from windstorm and/or windstorm related perils and/or named storms, in an amount at least equal to 100% of the full insurable value on a replacement cost basis of the Improvements and personalty and fixtures owned by the Mortgagor and included in the related Mortgaged Property by an insurer meeting the Insurance Rating Requirements.
The Mortgaged Property is covered, and required to be covered pursuant to the related Mortgage Loan Documents, by a commercial general liability insurance policy issued by an insurer meeting the Insurance Rating Requirements including broad-form coverage for property damage, contractual damage and personal injury (including bodily injury and death) in amounts as are generally required by the Seller for loans originated for securitization, and in any event not less than $1 million per occurrence and $2 million in the aggregate.
An architectural or engineering consultant has performed an analysis of each of the Mortgaged Properties located in seismic zones 3 or 4 in order to evaluate the structural and seismic condition of such property, for the sole purpose of assessing the probable maximum loss (“PML”) for the Mortgaged Property in the event of an earthquake. In such instance, the PML or equivalent was based on a 475-year return period, an exposure period of 50 years and a 10% probability of exceedance. If the resulting report concluded that the PML or equivalent would exceed 20% of the amount of the replacement costs of the improvements, earthquake insurance on such Mortgaged Property was obtained by an insurer rated at least “A:VIII” by A.M. Best Company or “A3” (or the equivalent) from Xxxxx’x Investors Service, Inc. or “A-” by Standard & Poor’s Ratings Services in an amount not less than 100% of the PML or the equivalent.
The Mortgage Loan Documents require insurance proceeds in respect of a property loss to be applied either (a) to the repair or restoration of all or part of the related Mortgaged Property, with respect to all property losses in excess of 5% of the then-outstanding principal amount of the related Mortgage Loan, the lender (or a trustee appointed by it) having the right to hold and
| B-7 |
disburse such proceeds as the repair or restoration progresses, or (b) to the payment of the outstanding principal balance of such Mortgage Loan together with any accrued interest thereon.
All premiums on all insurance policies referred to in this section required to be paid as of the Cut-off Date have been paid, and such insurance policies name the lender under the Mortgage Loan and its successors and assigns as a loss payee under a mortgagee endorsement clause or, in the case of the general liability insurance policy, as named or additional insured. Such insurance policies will inure to the benefit of the Trustee. Each related Mortgage Loan obligates the related Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the lender to maintain such insurance at the Mortgagor’s cost and expense and to charge such Mortgagor for related premiums. All such insurance policies (other than commercial liability policies) require at least 10 days’ prior notice to the lender of termination or cancellation arising because of nonpayment of a premium and at least 30 days prior notice to the lender of termination or cancellation (or such lesser period, not less than 10 days, as may be required by applicable law) arising for any reason other than non-payment of a premium and no such notice has been received by the Seller.
| B-8 |
(except that an ARD Loan may provide for the accrual of the portion of interest in excess of the rate in effect prior to the Anticipated Repayment Date) or an equity participation by the Seller.
| B-9 |
or in connection with any full or partial release of the related Mortgaged Property or related security for such Mortgage Loan, no fees are payable to such trustee except for de minimis fees paid.
| B-10 |
in by, the Mortgagor; (ii) Mortgagor or guarantor shall have colluded with other creditors to cause an involuntary bankruptcy filing with respect to the Mortgagor or (iii) transfers of either the Mortgaged Property or equity interests in Mortgagor made in violation of the Mortgage Loan Documents; and (b) contains provisions providing for recourse against the Mortgagor and guarantor (which is a natural person or persons, or an entity distinct from the Mortgagor (but may be affiliated with the Mortgagor) that, as of the date of origination of the related Mortgage Loan, has assets other than equity in the related Mortgaged Property that are not de minimis), for losses and damages sustained in the case of (i) (A) misapplication, misappropriation or conversion of insurance proceeds or condemnation awards or of rents following an event of default, or (B) any security deposits not delivered to lender upon foreclosure or action in lieu thereof (except to the extent applied in accordance with leases prior to a Mortgage Loan event of default); (ii) the Mortgagor’s fraud or intentional misrepresentation; (iii) willful misconduct by the Mortgagor or guarantor; (iv) breaches of the environmental covenants in the Mortgage Loan Documents; or (v) commission of material physical waste at the Mortgaged Property, which may, with respect to this clause (v), in certain instances, be limited to acts or omissions of the related Mortgagor, guarantor, property manager or their affiliates, employees or agents.
In the case of any Mortgage Loan originated after December 6, 2010, in the event of a taking of any portion of a Mortgaged Property by a State or any political subdivision or authority thereof, whether by legal proceeding or by agreement, the Mortgagor can be required to pay down the principal balance of the Mortgage Loan or Whole Loan in an amount not less than the amount required by the REMIC Provisions and, to such extent, may not be required to apply such an amount to the restoration of the Mortgaged Property or released to the Mortgagor, if,
| B-11 |
immediately after the release of such portion of the Mortgaged Property from the lien of the Mortgage (but taking into account the planned restoration) the fair market value of the real property constituting the remaining Mortgaged Property is not equal to at least 80% of the remaining principal balance of the Mortgage Loan or Whole Loan.
In the case of any Mortgage Loan originated after December 6, 2010, no such Mortgage Loan that is secured by more than one Mortgaged Property or that is cross-collateralized with another Mortgage Loan permits the release of cross-collateralization of the related Mortgaged Properties or a portion thereof, including due to a partial condemnation, other than in compliance with the loan-to-value ratio and other requirements of the REMIC Provisions.
| B-12 |
replaced with property of equivalent value and functionality and transfers by leases entered into in accordance with the Mortgage Loan Documents), (a) the related Mortgaged Property, or any controlling equity interest in the related Mortgagor, is directly or indirectly pledged, transferred or sold, other than as related to (i) family and estate planning transfers or transfers upon death or legal incapacity, (ii) transfers to certain affiliates as defined in the related Mortgage Loan Documents, (iii) transfers of less than a controlling interest in a Mortgagor, (iv) transfers to another holder of direct or indirect equity in the Mortgagor, a specific Person designated in the related Mortgage Loan Documents or a Person satisfying specific criteria identified in the related Mortgage Loan Documents, (v) transfers of common stock in publicly traded companies or (vi) a substitution or release of collateral within the parameters of paragraphs 29 and 34 in this Exhibit B, or (vii) by reason of any mezzanine debt that existed at the origination of the related Mortgage Loan, or future permitted mezzanine debt or (b) the related Mortgaged Property is encumbered with a subordinate lien or security interest against the related Mortgaged Property, other than (i) any Companion Loan of any Mortgage Loan or any subordinate debt that existed at origination and is permitted under the related Mortgage Loan Documents, (ii) purchase money security interests, (iii) any Mortgage Loan that is cross-collateralized and cross-defaulted with another Mortgage Loan or (iv) Permitted Encumbrances. The Mortgage or other Mortgage Loan Documents provide that to the extent any Rating Agency fees are incurred in connection with the review of and consent to any transfer or encumbrance, the Mortgagor is responsible for such payment along with all other reasonable fees and expenses incurred by the Mortgagee relative to such transfer or encumbrance.
| B-13 |
the Closing Date; (iii) the Mortgagor is permitted to pledge only United States “government securities” within the meaning of Treasury Regulations Section 1.860G-2(a)(8)(ii), the revenues from which will be sufficient to make all scheduled payments under the Mortgage Loan when due, including the entire remaining principal balance on the maturity date (or on or after the first date on which payment may be made without payment of a yield maintenance charge or prepayment penalty) or, if the Mortgage Loan is an ARD Loan, the entire principal balance outstanding on the Anticipated Repayment Date, and if the Mortgage Loan permits partial releases of real property in connection with partial defeasance, the revenues from the collateral will be sufficient to pay all such scheduled payments calculated on a principal amount equal to a specified percentage at least equal to 115% of the allocated loan amount for the real property to be released; (iv) the defeasance collateral is not permitted to be subject to prepayment, call, or early redemption; (v) the Mortgagor is required to provide a certification from an independent certified public accountant that the collateral is sufficient to make all scheduled payments under the Note as set forth in clause (iii) above, (vi) if the Mortgagor would continue to own assets in addition to the defeasance collateral, the portion of the Mortgage Loan secured by defeasance collateral is required to be assumed by a Single-Purpose Entity; (vii) the Mortgagor is required to deliver an opinion of counsel that the Trustee has a perfected security interest in such collateral prior to any other claim or interest; and (viii) the Mortgagor 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.
With respect to any Mortgage Loan where the Mortgage Loan is secured by a ground leasehold estate in whole or in part, 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 or other agreement received from the ground lessor in favor of the Seller, its successors and assigns, the Seller represents and warrants that:
(A) The Ground Lease or a memorandum regarding such Ground Lease has been duly recorded or submitted for recordation in a form that is acceptable for recording in the applicable jurisdiction. The Ground Lease or an estoppel or other agreement received from the ground lessor 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 the Seller’s knowledge, no material change in the terms of the Ground Lease had occurred since its recordation, except by any written instruments which are included in the related Mortgage File;
| B-14 |
(B) The lessor under such Ground Lease has agreed in a writing included in the related Mortgage File (or in such Ground Lease) 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 will be enforceable, by either borrower or the mortgagee) that extends not less than 20 years beyond the stated maturity of the related Mortgage Loan, or 10 years past the stated maturity if such Mortgage Loan fully amortizes by the stated maturity (or with respect to a Mortgage Loan that accrues on an actual 360 basis, substantially amortizes);
(D) The Ground Lease is not subject to any interests, estates, liens or encumbrances superior to, or of equal priority with, the Mortgage, except for the related fee interest of the ground lessor and the Permitted Encumbrances;
(E) The Ground Lease does not place commercially unreasonable restrictions on the identity of the Mortgagee and the Ground Lease is assignable to the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor thereunder, and in the event it is so assigned, it is further assignable by the holder of the Mortgage Loan and its successors and assigns without the consent of the lessor;
(F) The Seller has not received any written notice of default under or notice of termination of such Ground Lease. To the Seller’s knowledge, there is no default under such Ground Lease and no condition that, but for the passage of time or giving of notice, would result in a default under the terms of such Ground Lease and to the Seller’s knowledge, such Ground Lease is in full force and effect as of the Closing Date;
(G) The Ground Lease or ancillary agreement between the lessor and the lessee requires the lessor to give to the lender written notice of any default, provides that no notice of default or termination is effective unless such notice is given to the lender, and requires that the ground lessor will supply an estoppel;
(H) A 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) to cure any default under the Ground Lease which is curable after the lender’s receipt of notice of any default before the lessor may terminate the Ground Lease;
(I) The Ground Lease does not impose any restrictions on subletting that would be viewed as commercially unreasonable by the Seller in connection with loans originated for securitization;
(J) Under the terms of the Ground Lease, an estoppel or other agreement received from the ground lessor and the related Mortgage (taken together), any related insurance proceeds or the portion of the condemnation award allocable to the ground lessee’s interest (other than in respect of a total or substantially total loss or taking as addressed in subpart (K)) will be applied either to the repair or to restoration of all or part of the related
| B-15 |
Mortgaged Property with (so long as such proceeds are in excess of the threshold amount specified in the related Mortgage Loan Documents) the lender or a trustee appointed by it having the right to hold and disburse such proceeds as repair or restoration progresses, or to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest;
(K) In the case of a total or substantial taking or loss, under the terms of the Ground Lease, an estoppel or other agreement and the related Mortgage (taken together), any related insurance proceeds, or portion of the condemnation award allocable to ground lessee’s interest in respect of a total or substantially total loss or taking of the related Mortgaged Property to the extent not applied to restoration, will be applied first to the payment of the outstanding principal balance of the Mortgage Loan, together with any accrued interest; and
(L) Provided that the lender cures any defaults which are susceptible to being cured, the ground lessor has agreed to enter into a new lease with lender upon termination of the Ground Lease for any reason, including rejection of the Ground Lease in a bankruptcy proceeding.
| B-16 |
| B-17 |
Diligence”). Based solely on the Sponsor Diligence, to the knowledge of the Seller, no Major Sponsor or guarantor (i) was in a state of federal bankruptcy or insolvency proceeding, (ii) had a prior record of having been in a state of federal bankruptcy or insolvency, or (iii) had been convicted of a felony.
| B-18 |
be part of the Servicing File; and to the Seller’s knowledge, except as set forth in the ESA, there is no (i) known circumstance or condition that rendered the Mortgaged Property in material noncompliance with applicable environmental laws, (ii) Environmental Conditions (as such term is defined in ASTM E1527-05 or its successor), or (iii) need for further investigation.
In the case of each Mortgage Loan set forth on Schedule I to this Agreement, (i) such Mortgage Loan is the subject of an environmental insurance policy, issued by the issuer set forth on Schedule I (the “Policy Issuer”) and effective as of the date thereof (the “Environmental Insurance Policy”), (ii) as of the origination date of the related Mortgage Loan and to the Seller’s knowledge as of the Cut-off Date, the Environmental Insurance Policy is in full force and effect, there is no deductible and the Trustee is a named insured under such policy, (iii)(a) a property condition or engineering report was prepared, if the related Mortgaged Property was constructed prior to 1985, with respect to asbestos-containing materials (“ACM”) and, if the related Mortgaged Property is a multifamily property, with respect to radon gas (“RG”) and lead-based paint (“LBP”), and (b) if such report disclosed the existence of a material and adverse LBP, ACM or RG environmental condition or circumstance affecting the related Mortgaged Property, the related Mortgagor (A) was required to remediate the identified condition prior to closing the Mortgage Loan or provide additional security or establish with the mortgagee a reserve in an amount deemed to be sufficient by the Seller, for the remediation of the problem, and/or (B) agreed in the Mortgage Loan Documents to establish an operations and maintenance plan after the closing of the Mortgage Loan that should reasonably be expected to mitigate the environmental risk related to the identified LBP, ACM or RG condition, (iv) on the effective date of the Environmental Insurance Policy, the Seller as originator had no knowledge of any material and adverse environmental condition or circumstance affecting the Mortgaged Property (other than the existence of LBP, ACM or RG) that was not disclosed to the Policy Issuer in one or more of the following: (a) the application for insurance, (b) a Mortgagor questionnaire that was provided to the Policy Issuer, or (c) an engineering or other report provided to the Policy Issuer, and (v) the premium of any Environmental Insurance Policy has been paid through the maturity of the policy’s term and the term of such policy extends at least five years beyond the maturity of the Mortgage Loan.
| B-19 |
| B-20 |
Mortgage Loan; and to the Seller’s actual knowledge there are no such actions, suits or proceedings threatened against such Mortgagor.
For purposes of these representations and warranties, the phrases “the Seller’s knowledge” or “the Seller’s belief” and other words and phrases of like import shall mean, except where otherwise expressly set forth herein, the actual state of knowledge or belief of the officers and employees of the Seller directly responsible for the underwriting, origination, servicing or sale of the Mortgage Loans regarding the matters expressly set forth herein. All information contained in documents which are part of or required to be part of a Servicing File, as specified in the Pooling and Servicing Agreement (to the extent such documents exist or existed), shall be deemed to be within the Seller’s knowledge including but not limited to any written notices from or on behalf of the Mortgagor.
“Servicing File”. A copy of the Mortgage File and documents and records not otherwise required to be contained in the Mortgage File that (i) relate to the origination and/or servicing and administration of the Mortgage Loans, (ii) are reasonably necessary for the ongoing administration and/or servicing of the Mortgage Loans or for evidencing or enforcing any of the rights of the holder of the Mortgage Loans or holders of interests therein and (iii) are in the possession or under the control of the Seller, provided that the Seller shall not be required to deliver any draft documents, privileged or other communications, credit underwriting, due diligence analyses or data or internal worksheets, memoranda, communications or evaluations.
| B-21 |
EXHIBIT B-30-1
LIST OF MORTGAGE LOANS WITH CURRENT MEZZANINE DEBT
None.
| B-30-1-1 |
EXHIBIT B-30-2
LIST OF MORTGAGE LOANS WITH PERMITTED MEZZANINE DEBT
None.
| B-30-2-1 |
EXHIBIT B-30-3
LIST OF CROSS-COLLATERALIZED AND CROSS-DEFAULTED MORTGAGE LOANS
None.
| B-30-3-1 |
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
| Representation | Mortgage
Loan and Number as Identified on Annex A |
Description of Exception |
| 8 | Marumsco Plaza (Loan No. 3) | (Permitted Liens; Title Insurance) – The fifth largest tenant Walgreens has a Right of First Refusal (ROFR) to purchase its subdivided premises in the event that the Mortgagor desires to accept a third-party offer to purchase the subdivided premises, provided if the offer is for the Mortgaged Property, the tenant must elect to purchase the entire Mortgaged Property, though it may assign the right to purchase the balance of the Mortgaged Property to the third-party offeror. Such ROFR does not apply to any foreclosure or a transfer through a deed in lieu. |
| 0 | Xxxxxxxxxx Xxxxx (Loan No. 33) | (Permitted Liens; Title Insurance) – The largest tenant Fiesta Mart has a Right of First Refusal (ROFR) to purchase the Mortgaged Property or its leased premises in the event that the Mortgagor desires to accept a third-party offer to purchase the Mortgaged Property or its leased premises, as applicable. Such ROFR does not apply to foreclosure or other acquisition by lender. |
| 00 | Xxxxxxxxx Xxxxxxxx Xxxxxx (Xxxx Xx. 00)
Xxxxxx Xxxxxxxx Center III (Loan No. 48)
|
(Actions Concerning Mortgage Loan) – The sponsor of the borrower reported that one of the guarantors of the Mortgage Loan is subject to litigation with a lender claiming, among other things, that “material physical waste” in excess of $1,300,000 was committed at a property other than the Mortgaged Property that secured a $9,500,000 mortgage loan for which the guarantor served as a non-recourse guarantor. |
| 26 | Old Orchard Apartments (Loan No. 64) | (Local Law Compliance) – The Mortgaged Property is legal nonconforming as multifamily dwellings of its density are only permitted upon approval of a special use permit, which permit has not been obtained. If the Mortgaged Property is damaged in any manner to the extent that the restoration costs would exceed 85% of the value of that use immediately before such damage occurred (exclusive of land and foundation), any subsequent use of that lot and/or structure must fully comply with current zoning regulations. |
| 00 | Xxxxxxxx Xxxxx (Loan No. 3) | (Environmental Conditions) – A related Phase I environmental site assessment (“ESA”), a Vapor Intrusion Testing report, and a Third Party Review (cumulatively, the “Environmental Reports”) reported that onsite dry cleaning had impacted soil and groundwater. Indoor vapor intrusion sampling identified impacts below applicable regulatory exposure limits, but pending further analysis it might become necessary to install a vapor mitigation system. The Environmental Reports recommended reporting the results of the vapor intrusion sampling to the Virginia Department of Environmental Quality (“VDEQ”) in a request for |
| C-1 |
| regulatory closure. The Mortgagor obtained an environmental insurance policy for the benefit of the lender from Lloyd’s Syndicates with a limit of $2 million per incident and, in the aggregate, a deductible of $50,000 and a term of ten years with an optional extension period of three years. In addition, a reserve in the amount of $300,000 was funded at origination of the Mortgage Loan. | ||
| 00 | Xxxxxxxxxx Xxxxx (Loan No. 33) | (Environmental Conditions) – The related ESA reported that a dry cleaner was formerly located at the Mortgaged Property until 2013. Soil was removed and no impact to groundwater is anticipated, however soil contamination remains at a portion of the Mortgaged Property. Remediation devices were installed; however, no regulatory closure has been granted. There is also a data gap related to an underground storage tank which was reportedly installed at the Mortgaged Property, but for which there is no record. The environmental consultant stated that the underground storage tank does not represent a recognized environmental concern even if it is present at the Mortgaged Property. The Mortgagor obtained an environmental insurance policy for the benefit of the lender from Lloyd’s Syndicates with a limit of $2,000,000 per incident and, in the aggregate, a deductible of $50,000 and a term of ten (10) years and an optional extended period of three (3) years. |
| C-2 |
EXHIBIT D
FORM OF OFFICER’S CERTIFICATE
[Xxxxxx & Dunlop Commercial Property Funding I CS, LLC][Xxxxxx & Dunlop Commercial Property Funding, LLC] hereby certifies as follows:
| 1. | All of the representations and warranties (except as set forth on Exhibit C) of [the Seller][WDCPF] under the Mortgage Loan Purchase Agreement, dated as of November 1, 2015, (the “Agreement”), among Credit Suisse First Boston Mortgage Securities Corp., [Seller and Xxxxxx & Dunlop Commercial Property Funding, LLC][the Seller and WDCPF], are true and correct in all material respects on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement) with the same force and effect as if made on and as of the date hereof (or as of such other date as of which such representation is made under the terms of Exhibit B to the Agreement). |
| 2. | [The Seller][WDCPF] has complied in all material respects with all the covenants and satisfied all the conditions on its part to be performed or satisfied under the Agreement on or prior to the date hereof and no event has occurred which would constitute a default on the part of [the Seller][WDCPF] under the Agreement. |
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| 3. | Neither the Prospectus, dated November 5, 2015 (the “Base Prospectus”), as supplemented by the Prospectus Supplement, dated November 23, 2015, (the “Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”), relating to the offering of the Class A-1, Class A-2, Class A-3, Class A-4, Class A-SB, Class X-A, Class X-B, Class A-S, Class B, Class C, Class D and Class E Certificates, nor the Offering Circular, dated November 23, 2015 (the “Offering Circular”), relating to the offering of the Class X-D, Class X-F, Class X-G, Class X-NR, Class F, Class G, Class NR and Class R Certificates, in the case of the Prospectus, as of the date of the Prospectus Supplement or as of the date hereof, or the Offering Circular, as of the date thereof or as of the date hereof, included or includes any untrue statement of a material fact relating to the Mortgage Loans (including any related Whole Loan, including, without limitation, the servicing terms thereof if not serviced under the Pooling and Servicing Agreement, including identification of the parties to the related Other Pooling and Servicing Agreement), the related borrowers, the related Mortgaged Properties or [the Seller][WDCPF] and its affiliates (to the extent such affiliate is not an Underwriter or Initial Purchaser) (collectively, the “Loan Detail”) or omitted or omits to state therein any material fact necessary in order to make the statements therein relating to the Loan Detail, in the light of the circumstances under which they were made, not misleading. |
Capitalized terms used herein without definition have the meanings given them in the Agreement or, if not defined therein, in the Indemnification Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
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Certified this ___ day of November, 2015.
| [XXXXXX & DUNLOP COMMERCIAL PROPERTY FUNDING I CS, LLC | |||
| By: | |||
| Name: | |||
| Title:] | |||
| [XXXXXX & DUNLOP COMMERCIAL PROPERTY FUNDING, LLC | |||
| By: | |||
| Name: | |||
| Title:] | |||
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SCHEDULE I
MORTGAGED PROPERTY FOR WHICH ENVIRONMENTAL INSURANCE IS MAINTAINED
Marumsco Plaza
Buckingham Place
| Sch. I-1 |