EXHIBIT 4.4
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
GENERAL ELECTRIC CAPITAL CORPORATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of November 1, 2005
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TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date...................
Section 2. Closing Date Actions...........................................
Section 3. Conveyance of Mortgage Loans...................................
Section 4. Depositor's Conditions to Closing..............................
Section 5. Seller's Conditions to Closing.................................
Section 6. Representations and Warranties of Seller.......................
Section 7. Obligations of Seller..........................................
Section 8. Crossed Mortgage Loans.........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance ...................................................
Section 10. Representations and Warranties of Depositor....................
Section 11. Survival of Certain Representations, Warranties and Covenants..
Section 12. Transaction Expenses...........................................
Section 13. Recording Costs and Expenses...................................
Section 14. Notices........................................................
Section 15. Examination of Mortgage Files..................................
Section 16. Successors.....................................................
Section 17. Governing Law..................................................
Section 18. Severability...................................................
Section 19. Further Assurances.............................................
Section 20. Counterparts...................................................
Section 21. Characterization of Sale.......................................
Section 22. Recordation of Agreement.......................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for GECC Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of Lost Mortgage Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of November 1, 2005, is made by and between GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation ("Seller"), and CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein or elsewhere in this Agreement, in the Pooling and Servicing
Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Xxxxx
Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against receipt by
Seller of a trust receipt, pursuant to an arrangement between Seller and the
Trustee; provided, however, that item (p) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller or at its direction by
wire transfer in immediately available funds to an account designated by
Seller on or prior to the Closing Date (or, by such other method as shall
be mutually acceptable to Depositor and Seller). The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to the amount that the
Depositor and the Seller have mutually agreed upon as the Seller's share
of the net securitization proceeds from the sale of the Publicly Offered
Certificates and the Private Certificates as set forth in the Closing
Statement (which amount includes, without limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, subject to any related servicing rights
of any applicable Master Servicer under, and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: each
of the Mortgage Loans identified on the Mortgage Loan Schedule, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or yield maintenance charges received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or yield maintenance charges that were due on
or prior to the Cut-off Date. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(a) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the form
of Exhibit B hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements or assignments or
allonges showing a complete chain of endorsement or assignment from the Mortgage
Loan Originator either in blank or to Seller, and further endorsed (at the
direction of Depositor given pursuant to this Agreement) by Seller, on its face
or by allonge attached thereto, without recourse, either in blank or to the
order of the Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-C5, without recourse, representation or warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each case in
the form submitted for recording or, if recorded, with evidence of recording
indicated thereon;
(c) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable, completion of
the name of the assignee), from Seller (or the Mortgage Loan Originator) either
in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-C5";
(d) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording thereon;
(e) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), in recordable form (except for any
missing recording information and, if applicable, completion of the name of the
assignee), from Seller (or the Mortgage Loan Originator), either in blank or to
"Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-C5";
(f) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), from Seller (or the Mortgage Loan
Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5," which assignment
may be included as part of an omnibus assignment covering other documents
relating to the Mortgage Loan (provided that such omnibus assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company) or interim binder that is marked as
binding and countersigned by the title company, insuring the priority of the
Mortgage as a first lien on the related Mortgaged Property, relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording (including
the filing number or other similar filing information) acceptable to the Trustee
(including, without limitation, evidence of such filed or recorded UCC Financing
Statement as shown on a written UCC search report from a reputable search firm,
such as Corporation Service Company, CT Corporation System and the like or
printouts of on-line confirmations from such UCC filing or recording offices or
authorized agents thereof), sufficient to perfect (and maintain the perfection
of) the security interest held by the Mortgage Loan Originator (and each
assignee of record prior to the Trustee) in and to the personalty of the
Borrower at the Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient to assign
each such UCC Financing Statement to the Trustee;
(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including any mezzanine loan documents or
preferred equity documents, and a copy of the promissory note relating to such
other debt (if such other debt is also secured by the related Mortgage);
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement;
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Account Agreement (if separate from the related
Mortgage and Loan Agreement);
(p) the originals and copies of letters of credit, if any, relating
to the Mortgage Loans and amendments thereto which entitles the Trust to draw
thereon; provided that in connection with the delivery of the Mortgage File to
the Trust, such originals shall be delivered to the applicable Master Servicer
and copies thereof shall be delivered to the Trustee;
(q) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(r) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and any originals or copies of
amendments, modifications or extensions thereto, if any;
(s) the original or copy of any property management agreement;
(t) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and any applicable transfer/assignment
documents;
(u) a checklist of the documents included in the subject Mortgage
File;
(v) if applicable, the original or a counterpart of any post-closing
agreement relating to any modification, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Borrower) required to be added to the
Mortgage File pursuant to Section 3.20(l) of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement), (1) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above and with
evidence of recording or filing thereon on the Closing Date, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, then the Seller: (i)
shall deliver, or cause to be delivered, to the Trustee or its designee a
duplicate original or true copy of such document or instrument certified by the
applicable public recording or filing office, the applicable title insurance
company or Seller to be a true and complete duplicate original or copy of the
original thereof submitted for recording or filing; and (ii) shall deliver, or
cause to be delivered, to the Trustee or its designee either the original of
such non-delivered document or instrument, or a photocopy thereof (certified by
the appropriate public recording or filing office to be a true and complete copy
of the original thereof submitted for recording or filing), with evidence of
recording or filing thereon (with a copy to the applicable Master Servicer),
within 120 days of the Closing Date, which period may be extended up to two
times, in each case for an additional period of 45 days (provided that Seller,
as certified in writing to the Trustee prior to each such 45-day extension, is
in good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy). Compliance with this paragraph will satisfy
Seller's delivery requirements under this Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement), (1) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon for any other reason, including without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this Agreement shall be deemed to have been satisfied
and such non-delivered document or instrument shall be deemed to have been
included in the related Mortgage File if a photocopy of such non-delivered
document or instrument (with evidence of recording or filing thereon and
certified by the appropriate recording or filing office to be a true and
complete copy of the original thereof as filed or recorded) is delivered to the
Trustee (with a copy to the applicable Master Servicer) on or before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, Seller shall so notify the Trustee and shall
not be in breach of its obligations with respect to such delivery, provided that
Seller promptly forwards such UCC Financing Statement to the Trustee (with a
copy to the applicable Master Servicer) upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing or recording.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare or
complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC Financing
Statements to the Trustee to be delivered pursuant to clauses (c), (e), (k), and
(n) above (collectively, the "Assignments"), to submit those Assignments for
filing and recording, as the case may be, in the applicable public filing and
recording offices and to deliver those Assignments to the Trustee (with a copy
to the applicable Master Servicer) or its designee as those Assignments (or
certified copies thereof) are received from the applicable filing and recording
offices with evidence of such filing or recording indicated thereon. However, in
the event Seller engages a third-party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of Seller
pursuant to this Agreement remain binding on Seller; and, if Seller does not
engage a third party as contemplated by the immediately preceding sentence, then
Seller will still be liable for recording and filing fees and expenses of the
Assignments as and to the extent contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, rent rolls, leases, environmental and
engineering reports, third-party underwriting reports, appraisals, surveys,
legal opinions, estoppels, financial statements, operating statements and any
other information provided by the respective Borrower from time to time, but
excluding any draft documents, attorney/client communications, which are
privileged or constitute legal or other due diligence analyses, and documents
prepared by Seller or any of its Affiliates solely for internal communication,
credit underwriting or due diligence analyses (other than the underwriting
information contained in the related underwriting memorandum or asset summary
report prepared by the Seller in connection with the preparation of Exhibit A-1
to the Prospectus Supplement)) that are not required to be a part of a Mortgage
File in accordance with the definition thereof, together with copies of all
instruments and documents which are required to be a part of the related
Mortgage File in accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller (within 30 days after the Closing Date) shall cause to be
prepared, executed and delivered to the issuer of each such letter of credit
such notices, assignments and acknowledgements as are required under such letter
of credit to assign, without recourse, to, and vest in, the Trustee (in care of
the applicable Master Servicer) (whether by actual assignment or by amendment of
the letter of credit) the Seller's rights as the beneficiary thereof and drawing
party thereunder. The designated beneficiary under each letter of credit
referred to in the preceding sentence shall be the Trustee (in care of the
applicable Master Servicer).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File," if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer) for deposit into Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
On the Closing Date, pursuant to generally accepted accounting
principles ("GAAP"), Seller shall report its transfer of the Mortgage Loans to
Depositor, as provided herein, as a sale of the Mortgage Loans to Depositor in
exchange for the consideration specified in Section 2 hereof. Seller shall at
all times following the Closing Date cause its applicable financial and
accounting records, and its financial statements and any relevant consolidated
financial statements of any direct or indirect parent, to clearly reflect such
transfer as a sale (as opposed to a secured loan), so long as such treatment is
consistent with GAAP as then in effect, and such records and financial
statements shall reflect that such Mortgage Loans are no longer available to
satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations and
warranties set forth in Section 6(a) (subject to the exceptions set forth
in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by Depositor in order for Depositor to perform any of
it obligations or satisfy any of the conditions on its part to be
performed or satisfied pursuant to any sale of Mortgage Loans by Depositor
as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
Seller, any Mortgage Loan Documents required to be recorded and any intervening
assignments with evidence of recording thereon that are required to be included
in the Mortgage Files. Seller shall reasonably cooperate with the Trustee or the
applicable Special Servicer after the Closing Date and shall deliver to the
Trustee or the applicable Special Servicer, as applicable, the powers of
attorney described in the prior sentence in form and substance reasonably
acceptable to the requesting party.
(e) The Seller shall have paid or caused to be paid upfront all the
annual fees of each Rating Agency allocable to the Mortgage Loans.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the transactions set
forth therein, together with copies of the charter, by-laws and
certificate of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
Seller has conducted and is conducting its business so as to comply in all
material respects with all applicable statutes and regulations of
regulatory bodies or agencies having jurisdiction over it, except where
the failure so to comply would not have a materially adverse effect on the
performance by Seller of this Agreement, and there is no charge, action,
suit or proceeding before or by any court, regulatory authority or
governmental agency or body pending or, to the knowledge of Seller,
threatened, which is reasonably likely to materially and adversely affect
the performance by Seller of this Agreement or the consummation of
transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans owned by it and to execute and
deliver this Agreement (and all agreements and documents executed and
delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all agreements
and documents executed and delivered by Seller in connection herewith).
Seller has duly authorized the execution, delivery and performance of this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith), and has duly executed and delivered this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each other
party thereto, constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, fraudulent transfer, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
articles or certificate of incorporation and bylaws or similar type
organizational documents, as applicable; (B) conflict with, result in a
breach of, or constitute a default or result in an acceleration under, any
agreement or instrument to which Seller is now a party or by which it (or
any of its properties) is bound if compliance therewith is necessary (1)
to ensure the enforceability of this Agreement or (2) for Seller to
perform its duties and obligations under this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of Depositor to realize on the Mortgage Loans owned by
Seller.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans owned by it constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to Depositor hereunder
except for (A) the reimbursement of expenses as described herein or
otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties
set forth on Schedule V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on Schedule II.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "most recent due date for the subject Replacement Mortgage
Loan on or before the date of substitution"). From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans, as of the date
hereof in Section 6(a)(xii) or as of the Closing Date pursuant to Section
4(b)(iii) (in either case, subject to the exceptions to such representations and
warranties set forth in the Exception Report) or with respect to any Replacement
Mortgage Loan, as of the date of substitution pursuant to Section 6(b) (in any
such case, a "Breach"), or receives notice that (a) any document required to be
included in the Mortgage File related to any Mortgage Loan is not in the
Trustee's (or its designee's) possession within the time period required herein
or (b) such document has not been properly executed or is otherwise defective on
its face (clause (a) and clause (b) each, a "Defect" (which term shall include
the "Defects" detailed in the immediately following paragraph) in the related
Mortgage File), and if such Breach or Defect, as the case may be, materially and
adversely affects or is deemed hereby to materially and adversely affect, the
value of the related Mortgage Loan or any successor REO Loan or the interests of
any class of Certificateholders (any Breach or Defect that materially and
adversely affects the value of the related Mortgage Loan or the interests of any
class of Certificateholders, a "Material Breach" or a "Material Defect",
respectively), then the Seller shall, upon written request of Depositor, the
Trustee, the applicable Master Servicer or the applicable Special Servicer, not
later than 90 days after the receipt by Seller of such written request (subject
to the second succeeding paragraph, the "Initial Resolution Period"): (i) cure
such Material Breach or Material Defect, as the case may be, in all material
respects; (ii) repurchase the affected Mortgage Loan at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii) substitute,
in accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the applicable Master Servicer for deposit into the applicable Collection
Account any Substitution Shortfall Amount (as defined in the Pooling and
Servicing Agreement) in connection therewith; provided, however, that if (i)
such Material Breach or Material Defect is capable of being cured but not within
the Initial Resolution Period, (ii) such Material Breach or Material Defect does
not cause the related Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code), (iii) Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) Seller has delivered to the Rating
Agencies, the applicable Master Servicer, the applicable Special Servicer and
the Trustee an Officer's Certificate that describes the reasons that the cure
was not effected within the Initial Resolution Period and the actions that it
proposes to take to effect the cure and that states that it anticipates the cure
will be effected within the additional 90-day period, then Seller shall have an
additional 90 days to cure such Material Defect or Material Breach. If any
Breach pertains to a representation or warranty that the related Mortgage Loan
Documents or any particular Mortgage Loan Document requires the related Borrower
to bear the costs and expenses associated with any particular action or matter
under such Mortgage Loan Document(s), then Seller shall cure such Breach within
the Initial Resolution Period by reimbursing the Trust Fund (by wire transfer of
immediately available funds) the reasonable amount of any such costs and
expenses incurred by the applicable Master Servicer, the applicable Special
Servicer, the Trustee or the Trust Fund that are the basis of such Breach and
have not been reimbursed by the related Borrower; provided, however, that in the
event any such costs and expenses exceed $10,000, Seller shall have the option
to either repurchase the related Mortgage Loan at the applicable Purchase Price,
replace such Mortgage Loan and pay any applicable Substitution Shortfall Amount
or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, Seller shall remit the amount of such costs and
expenses and upon its making such remittance, Seller shall be deemed to have
cured such Breach in all respects. Provided such payment is made, the second
preceding sentence describes the sole remedy available to the Certificateholders
and the Trustee on their behalf regarding any such Breach, and Seller shall not
be obligated to repurchase, substitute or otherwise cure such Breach under any
circumstances. With respect to any repurchase of a Mortgage Loan hereunder or
any substitution of one or more Qualified Substitute Mortgage Loans for a
Mortgage Loan hereunder, (A) no such substitution may be made in any calendar
month after the Determination Date for such month; (B) scheduled payments of
principal and interest due with respect to the Qualified Substitute Mortgage
Loan(s) after the month of substitution, and scheduled payments of principal and
interest due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the applicable Master Servicer or
the applicable Special Servicer on behalf of the Trust on or prior to the
related date of repurchase or substitution, shall be part of the Trust Fund; and
(C) scheduled payments of principal and interest due with respect to each such
Qualified Substitute Mortgage Loan on or prior to the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust after the related date of repurchase or substitution, shall not be part of
the Trust Fund, and Seller (or, if applicable, any person effecting the related
repurchase or substitution in the place of Seller) shall be entitled to receive
such payments promptly following receipt by the applicable Master Servicer or
the applicable Special Servicer, as applicable, under the Pooling and Servicing
Agreement.
The absence of the following from the Mortgage File will cause a
document in the Mortgage File to be deemed to have a "Material Defect": (a) the
original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the original signed Mortgage, unless there is
included in the Mortgage File a certified copy of the Mortgage as recorded or as
sent for recordation, together with a certificate stating that the original
signed Mortgage was sent for recordation, or a copy of the Mortgage and the
related recording information; (c) the item called for by clause (i) of the
definition of Mortgage File in Section 3; (d) any intervening assignments
required to create an effective assignment to the Trustee on behalf of the
Trust, unless there is included in the Mortgage File a certified copy of the
intervening assignment as recorded or as sent for recordation, together with a
certificate stating that the original intervening assignment was sent for
recordation, or a copy of the intervening assignment and the related recording
information; or (e) any required original letter of credit (unless such original
has been delivered to the applicable Master Servicer and copy thereof is part of
the Mortgage File), provided that such Defect may be cured by any substitute
letter of credit or cash reserve on behalf of the related Borrower; or (f) the
original or a copy of any required ground lease. Notwithstanding anything herein
to the contrary, the failure to include a document checklist in a Mortgage File
shall in no event constitute a Material Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless the Crossed Mortgage Loan Repurchase Criteria would be
satisfied if Seller were to repurchase or substitute for only the affected
Crossed Mortgage Loans as to which a Material Breach or Material Defect had
occurred without regard to this paragraph, and in the case of either such
repurchase or substitution, all of the other requirements set forth in the
Pooling and Servicing Agreement applicable to a repurchase or substitution, as
the case may be, would be so satisfied. In the event that one or more of such
other Crossed Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase
Criteria, Seller may elect either to repurchase or substitute for only the
affected Crossed Mortgage Loan as to which the related Breach or Defect exists
or to repurchase or substitute for all of the Crossed Mortgage Loans in the
related Mortgage Group. Seller shall be responsible for the cost of any
Appraisal required to be obtained by the applicable Master Servicer to determine
if the Crossed Mortgage Loan Repurchase Criteria have been satisfied, so long as
the scope and cost of such Appraisal has been approved by Seller (such approval
not to be unreasonably withheld). For purposes of this paragraph, a "Mortgage
Group" is any group of Mortgage Loans identified as a Mortgage Group on Schedule
III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the entire Mortgage Loan if the
affected Mortgaged Property may, pursuant to the partial release provisions in
the related Mortgage Loan Documents, be released and the Mortgaged Property
remaining after such release satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) Seller provides an opinion of counsel to the
effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be paid) the applicable release price required under the Mortgage Loan
Documents and, to the extent not reimbursable out of the release price pursuant
to the related Mortgage Loan Documents, any additional amounts necessary to
cover all reasonable out-of-pocket expenses reasonably incurred by the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Trust Fund in connection therewith, including any unreimbursed advances and
interest thereon made with respect to the Mortgaged Property that is being
released and (iii) such cure by release of such Mortgaged Property is effected
within the time periods specified for cure of a Material Breach or Material
Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, the Mortgage File(s) for the related Qualified Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and Servicer File
(and all other documents pertaining to such Mortgage Loan possessed by the
Depositor or the Trustee, as applicable, or on its behalf, but excluding any
draft documents, attorney/client privileged communications and documents
prepared by the Depositor or the Trustee (or by the Master Servicer or the
Special Servicer on behalf of the Trust), as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in Seller the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto) and the
related Mortgage Loan Documents and shall deliver to Seller any escrow payments
and reserve funds held by it, or on its behalf, with respect to such repurchased
or replaced Mortgage Loan.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to modify upon
such repurchase or substitution, the related Mortgage Loan Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event; and provided, further, that
if such Opinion of Counsel cannot be furnished, Seller and Depositor hereby
agree that such repurchase or substitution of only the affected Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not be permitted.
Any reserve or other cash collateral or letters of credit securing the subject
Crossed Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto unless the
Seller elects to repurchase or substitute for such Mortgage Loan in accordance
with the second paragraph of Section 7. The Seller shall pay all reasonable
costs and expenses associated with a defeasance of a Mortgage Loan to the extent
such costs and expenses have not been paid by the related Borrower and such
Borrower is not required to pay them under the terms of the related Mortgage
Loan Documents in effect on or before the Closing Date, the payment of which
fees shall constitute the sole remedy of any breach by a Seller of
representation (liv)(F) set forth on Exhibit A hereto unless the Seller elects
to repurchase or substitute for such Mortgage Loan in accordance with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Depositor,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 13 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee all recording and filing fees and expenses incurred
by the Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement, including
Assignments. In the event Seller elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy No.: (212)
743-4756 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department,
Telecopy No.: (000) 000-0000), or such other address or telecopy number as may
be designated by Depositor to Seller in writing, or (b) if sent to Seller, will
be mailed, delivered or telecopied and confirmed to it at General Electric
Capital Corporation, 000 Xxxx Xxxxxx, 000x Xxxxx, Xxx Xxxx Xxx Xxxx 00000,
Attention Capital Markets/Xxx Xxxxxx, Telecopy No.: (000) 000-0000, with a copy
to General Electric Capital Corporation, 000 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx, Esq., Telecopy No.: (203)
357-6768, or such other address or telecopy number as may be designated by
Seller to Depositor in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and, permitted assigns and nothing expressed in this Agreement is intended or
shall be construed to give any other Person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such designated
Persons and for the benefit of no other Person; it being understood that the
rights of Depositor pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders, as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to such rights of Depositor
hereunder; provided that the Trustee shall have no right to further assign such
rights to any other Person. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assign
because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Characterization of Sale(a) . It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans by Seller to
Depositor as provided in this Agreement be, and be construed as, a sale of the
Mortgage Loans by Seller to Depositor and not as a pledge of the Mortgage Loans
by Seller to Depositor to secure a debt or other obligation of Seller.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Seller
By:
------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
------------------------------------
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of November 1, 2005, between General Electric Capital Corporation (the "Seller")
and Credit Suisse First Boston Mortgage Securities Corp (the "Depositor").
Capitalized terms used herein without definition have the meanings given them in
or by reference in the Agreement or, if not defined in the Agreement, in the
Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"CBA Mortgage Loan" means any Mortgage Loan that constitutes a "CBA
A Loan" under the Pooling and Servicing Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated October 26, 2005, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
issued in multiple classes.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means November 9, 2005, except as otherwise provided
in Section 6(b) with respect to a Replacement Mortgage Loan, if any.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in November 2005 (or with
respect to Mortgage Loans which had closing/funding dates in November 2005, the
respective closing/funding dates of such Mortgage Loans), except as otherwise
provided in Section 6(b) with respect to a Replacement Mortgage Loan, if any.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of this Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Group" shall have the meaning given such term in Section 7
of this Agreement.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Offering Circular" means the confidential offering circular dated
October 26, 2005, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
November 1, 2005, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated October 14, 2005, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-121904).
"Prospectus Supplement" means the Prospectus Supplement, dated
October 26, 2005, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-3, Class A-4, Class A-1-A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E and Class F Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3.
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse First Boston LLC, GMAC Commercial
Holding Capital Markets Corp., Bank of America Securities LLC, Deutsche Bank
Securities Inc. and Wachovia Capital Markets, LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
October 26, 2005, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2005-C5
# Crossed Property Name Address City
------------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx 0000-0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx
18 Broadway Office Portfolio Various Various
30 York Creek Apartments 000 Xxxx Xxxxx Xxxxx Xxxxxxxx Xxxx
31 MK Plaza 000 Xxxx Xxxxxxxxx Xxxxx
00 Xxxxx Xxxxxxxx Xxxxxxxxx 000 Xxxx Xxxxxxx Xxxxxx San Antonio
00 Xxxxxx Xxxx Xxxxxxxxxx 000, 000, 000 Xxxxx Xxxxx 00 and 145,
175, 215, 305 Xxxxxx Road Ingleside
50 All Aboard - Menlo Park & Wilmington Various Various
51 Welsh Industrial Portfolio 3000 Xxxxxx Drive, 10052 Xxxxxx Drive,
0000 00xx Xxxxxx, 0000 00xx Xxxxxx
and 0000 000xx Xxxxxx Xxxxxxxxx
00 Xxxxxxxxx Xxxxxx Xxxxxx 000 Xxxxxxx Xxxx Xxxx & 000 Xxxxxxxxx Xxxx Xxxxxxxxxx
00 Xxxxx Xxxxx Self Storage 00000 Xxxxxxxx Xxxxxxx Xxxxx Xxxxx
00 Xxxxxxxxx Xxxxx 0000-0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxx
85 000 Xxxxx Xxxx 000 X. Xxxx Xxxxxx Xxxxxxxxxx
00 Xxx Xxxxxx - XX 0000 Xxxx Xxxxxx Xxxxxx Las Cruces
101 Villa Del Sol MHC 0000 00xx Xxxxxx Xxxx Xxxxxxxx
109 All Aboard - Sunnyvale 000 Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx
000 Xxxxx Xxx Professional Center 1575 - 0000 Xxxxxxx 00 Xxxx Newnan
115 All Aboard - San Xxxxx 0000 Xxxxxxx Xxxxxxxxx Xxx Xxxxx
118 Bayshore Village MHC 00000 Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxx Xxxxx
124 All Aboard - Oakland 0000 00xx Xxxxxx Xxxxxxx
134 All Aboard - San Francisco 0000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx
000 Xxxxxxx Xxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxxx Irving
162 Oakview Apartments 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx
000 Gator Crossing 5713-5741 and 0000 Xxxxxx Xxxxx Xxxx Xxxxxx
178 Summerfield Apartments 0000 Xxxxxxxxxxx Xxxxx Lebanon
184 Portage Green MHC 00000 00xx Xxxxxx Xxxxxxxxx Xxxxxxxxx
185 All Aboard - Santa Xxx 0000 Xxxx 0xx Xxxxxx Xxxxx Xxx
268 Oakbrook Apartments 0000 Xxxxxxx Xxxxxx Xxxx Xxxxx
Zip Interest Net Mortgage Original Cut-off
# Crossed State Code Rate Rate Balance Balance
----------------------------------------------------------------------------------------------------------------------------------
12 CO 80123 4.9400% 4.91918% $43,100,000 $43,100,000
18 Various Various 4.9800% 4.90918% $35,200,000 $35,200,000
00 XX 00000 5.2300% 5.20918% $20,522,000 $20,477,620
00 XX 00000 4.7500% 4.72918% $20,000,000 $20,000,000
00 XX 00000 5.3800% 5.35918% $20,000,000 $20,000,000
00
XX 00000 5.2800% 5.25918% $16,400,000 $16,400,000
50 Various Various 5.3500% 5.32918% $13,226,000 $13,213,076
51
IA 50322 5.2200% 5.19918% $13,000,000 $13,000,000
00 XX 00000 5.3500% 5.32918% $13,000,000 $13,000,000
00 XX 00000 5.5700% 5.54918% $10,000,000 $10,000,000
00 XX 00000 5.0100% 4.98918% $8,900,000 $8,900,000
00 XX 00000 5.4400% 5.41918% $8,400,000 $8,400,000
00 XX 00000 5.2300% 5.20918% $7,850,000 $7,850,000
000 XX 00000 5.3300% 5.30918% $7,125,000 $7,125,000
000 XX 00000 5.3800% 5.35918% $7,003,000 $6,988,331
000 XX 00000 5.3500% 5.32918% $6,850,000 $6,843,306
000 XX 00000 5.3800% 5.35918% $6,092,000 $6,079,239
000 XX 00000 5.2600% 5.23918% $6,000,000 $5,978,385
000 XX 00000 5.3800% 5.35918% $5,499,000 $5,487,481
000 XX 00000 5.3800% 5.35918% $5,176,000 $5,165,158
000 XX 00000 5.1100% 5.03918% $4,925,000 $4,925,000
000 XX 00000 5.1400% 5.11918% $4,078,000 $4,069,012
000 XX 00000 5.2000% 5.17918% $3,400,000 $3,396,555
000 XX 00000 5.3200% 5.29918% $3,300,000 $3,300,000
000 XX 00000 5.2600% 5.23918% $3,133,000 $3,126,268
000 XX 00000 5.3400% 5.31918% $3,125,000 $3,118,398
000 XX 00000 5.3400% 5.31918% $1,150,000 $1,143,749
Rem. Orig Rem.
Term to Maturity Amort. Amort. Monthly
# Crossed Maturity Date ARD Term Term Payment
-------------------------------------------------------------------------------------------------------------------------------
12 360 9/1/2015 N/A 360 360 $229,792
18 360 8/1/2015 N/A 360 360 $188,531
30 358 9/1/2015 N/A 360 358 $113,069
31 360 10/1/2010 N/A 360 360 $104,329
32 360 11/1/2015 N/A 360 360 $112,057
43
360 10/1/2010 N/A 360 360 $90,866
50 359 10/1/2015 N/A 360 359 $73,856
51
360 8/1/2015 N/A 360 360 $71,545
52 360 10/1/2015 N/A 360 360 $72,594
73 360 9/1/2015 N/A 360 360 $57,219
80 360 8/1/2015 N/A 360 360 $47,832
85 360 9/1/2015 N/A 360 360 $47,379
91 360 7/1/2015 N/A 360 360 $43,251
101 360 9/1/2015 N/A 360 360 $39,698
109 358 9/1/2015 N/A 360 358 $39,237
110 359 10/1/2015 N/A 360 359 $38,251
115 358 9/1/2015 N/A 360 358 $34,132
118 274 9/1/2015 N/A 276 274 $37,520
124 358 9/1/2015 N/A 360 358 $30,810
134 358 9/1/2015 N/A 360 358 $29,000
140 360 7/1/2015 N/A 360 360 $26,771
162 358 9/1/2015 N/A 360 358 $22,242
176 359 10/1/2015 N/A 360 359 $18,670
178 360 8/1/2015 N/A 360 360 $18,366
184 358 9/1/2010 N/A 360 358 $17,320
185 358 9/1/2015 N/A 360 358 $17,431
268 131 10/1/2016 N/A 132 131 $11,539
Units/
Sq. Ft./
Rooms/ Interest Calculation Administration
# Crossed Pads (30/360 / Actual/360) Fees Due Date ARD (Y/N)
-------------------------------------------------------------------------------------------------------------------------
12 309,173 Actual/360 0.02082% 1 No
18 316,249 Actual/360 0.07082% 1 No
30 576 Actual/360 0.02082% 1 No
31 552,490 Actual/360 0.02082% 1 No
32 213 Actual/360 0.02082% 1 No
43
235 Actual/360 0.02082% 1 No
50 187,435 Actual/360 0.02082% 1 No
51
248,400 Actual/360 0.02082% 1 No
52 73,414 Actual/360 0.02082% 1 No
73 100,790 Actual/360 0.02082% 1 No
80 46,607 Actual/360 0.02082% 1 No
85 60,817 Actual/360 0.02082% 1 No
91 77,020 Actual/360 0.02082% 1 No
101 207 Actual/360 0.02082% 1 No
109 92,425 Actual/360 0.02082% 1 No
110 60,056 Actual/360 0.02082% 1 No
115 60,520 Actual/360 0.02082% 1 No
118 266 Actual/360 0.02082% 1 No
124 73,925 Actual/360 0.02082% 1 No
134 60,548 Actual/360 0.02082% 1 No
140 81,056 Actual/360 0.07082% 1 No
162 268 Actual/360 0.02082% 1 No
176 21,000 Actual/360 0.02082% 1 No
178 108 Actual/360 0.02082% 1 No
184 79 Actual/360 0.02082% 1 No
185 44,830 Actual/360 0.02082% 1 No
268 134 Actual/360 0.02082% 1 No
Earthquake Environmental Fee/ Letter of Loan Group
# Crossed Defeasance Insurance Insurance Leasehold Credit (Y/N) #
----------------------------------------------------------------------------------------------------------
12 Yes N/A No Fee Yes 1
18 Yes N/A No Fee No 1
30 Yes N/A No Fee No 2
31 Yes N/A No Fee No 1
32 Yes N/A No Leasehold No 1
43
Yes N/A No Fee No 2
50 Yes Yes No Fee No 1
51
Yes N/A No Fee No 1
52 Yes N/A No Fee No 1
73 Yes N/A No Fee No 1
80 Yes N/A No Fee No 1
85 Yes N/A No Fee No 1
91 Yes N/A No Fee No 1
101 Yes N/A No Fee No 1
109 Yes N/A No Fee No 1
110 Yes N/A No Fee No 1
115 Yes Yes No Fee No 1
118 Yes N/A No Fee No 2
124 Yes Yes No Fee No 1
134 Yes N/A No Fee No 1
140 No N/A No Fee No 1
162 Yes N/A No Fee Yes 2
176 Yes N/A No Fee No 1
178 Yes N/A No Fee No 1
184 Yes N/A No Fee No 2
185 No N/A No Fee No 1
268 Yes N/A No Fee No 2
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
(i) [Good Title; Conveyance ].
(ii) [Qualified Originator].
None of the GE Capital-originator loans should be considered to have
been originated either by a "Qualified Originator" or in accordance
with the requirements applicable to "Non-Qualified Originators" set
forth in the related representation
(iii) [Authority; Assignment of Mortgage Loan].
(iv) [Transfer of Loan].
(v) [Licenses and Permits].
Southwest Commons (00-0000000)($43,100,000): Certificates of occupancy
related to new construction not yet obtained; Property is approximately
94% leased and 60% occupied, with three anchor tenants expected to be
open and paying rent as follows: (i) Sportsman's Warehouse (15.8% of
gross leasable area) is expected to be open by 11.01.2005 and paying
rent by 01.05.2006; (ii) Petsmart (10.4% of gross leasable area) is
expected to accept its building pad from landlord by 10.03.2005 and to
be open and paying rent by 04.26.2006; and (iii) Comp USA (8.3% of
gross leasable area) is expected to be open and paying rent by
11.01.2005; Since financing was in conjunction with borrower's
acquisition of the property, the title company held approximately
$7,985,694 in escrow for tenant improvements at closing, and the lender
required an additional $2,563,948 in leasing related escrows
(vi) [Legal, Valid and Binding Obligations].
(vii) [Assignment of Leases and Rents].
(viii) [Mortgage Status; Legal Valid and Binding Obligations].
(ix) [Modifications or Releases Since Origination].
(x) [Mortgage Lien].
Villa Del Sol MHC (00-0000000)($7,125,000): Florida statute confers
right of first refusal (ROFR) to owner's association; ROFR does not
apply to foreclosure or deed-in-lieu, however
White Oak Professional Center (00-0000000)($6,850,000): Tenant (Farners
& Merchants Community Bank) has right of first refusal (ROFR) to
purchase leased premises only (not entirety of mortgaged property);
ROFR is not extinguished by foreclosure
(xi) [Lender Actions Concerning Borrower Loan Representations].
(xii) [Borrower's Representations].
(xiii) [Title Insurance].
(xiv) [Holdbacks].
(xv) [Property Condition; Condemnation].
All Aboard-Santa Xxx (00-0000000)($3,125,000): Pending/threatened
condemnation affects entirety of property (CenterLine Light-Rail
Project in Southern CA); Additional recourse carve-out obtained from
high net worth sponsor for any related losses; The status of the
project itself, according to planning officials contacted by the
lender's representatives, is currently "paused" [details in asset
summary already provided]
(xvi) [Inspections].
(xvii) [Negative Amortization].
(xviii) [Whole Loan].
(xix) [Usury; Legal Compliance].
(xx) [Fraud; Customary Mortgage Provisions].
(xxi) [Taxes and Assessments].
(xxii) [Escrow Deposits].
Southwest Commons (00-0000000)($43,100,000): Certificates of occupancy
related to new construction not yet obtained; Property is approximately
94% leased and 60% occupied, with three anchor tenants expected to be
open and paying rent as follows: (i) Sportsman's Warehouse (15.8% of
gross leasable area) is expected to be open by 11.01.2005 and paying
rent by 01.05.2006; (ii) Petsmart (10.4% of gross leasable area) is
expected to accept its building pad from landlord by 10.03.2005 and to
be open and paying rent by 04.26.2006; and (iii) Comp USA (8.3% of
gross leasable area) is expected to be open and paying rent by
11.01.2005; Since financing was in conjunction with borrower's
acquisition of the property, the title company held approximately
$7,985,694 in escrow for tenant improvements at closing, and the lender
required an additional $2,563,948 in leasing related escrows
(xxiii) [Insurance].
Summerfield Apts. (00-0000000)($3,300,000): Terrorism insurance not
required; Carve-out from warm body indemnitors obtained re related
losses, however; Insurance renewal reflects coverage for Certified Acts
of Terrorism per TRIA through 08.29.2006
(xxiv) [No Material Defaults].
(xxv) [Payment Record].
(xxvi) [Lender Remedies; Bankruptcy].
(xxvii) [Environmental Conditions].
(xxviii) [Due-On-Sale].
(xxix) [Encroachments].
(xxx) [Mortgage Loan Schedule].
(xxxi) [Leaseholds].
Hotel Valencia Riverwalk (00-0000000)($20,000,000): Leasehold; Fee Not
Subordinated; Entirety of mortgaged property is subject to ground
lease; Latest possible ground lease expiration is 12.31.2101 (Loan
maturity is 11.01.2015); Variations: Ground lessee's transfer of its
interest to leasehold mortgagee is pre-approved by the ground lessor,
but subsequent assignments by leasehold mortgage (or, for purposes of
taking title, its designee) are subject to the ground lessor's consent,
which shall not be unreasonably withheld, conditioned or delayed, and
which shall be deemed given if transferee satisfies $20 million net
worth requirement and, among other things, continues its business in a
manner appropriate for an upscale hotel, and continues management by an
approved operator (10 years of experience managing upscale hotels and,
if transfer occurs within end of third lease years, ownership or
operation of at least twenty upscale hotel properties)
(xxxii) [Part Fee/Part Leaseholds].
(xxxiii) [Other Collateral; Cross-Collateralization].
(xxxiv) [Capital Contributions].
(xxxv) [FIRREA Appraisals].
(xxxvi) [Subordinate Mortgages].
(xxxvii) [Single Purposes Entity].
(xxxviii)[Encumbrances of Ownership Interest; Unsecured Debt].
York Creek Apts. (00-0000000)($20,522,000): Existing unsecured sub debt
in maximum principal amount of $2,052,200 permitted to Land & Co
(affiliated party); Subordination and standstill agreement obtained for
benefit of Lender
Timber Oaks Apts. (00-0000000)($16,400,000): Existing unsecured sub
debt in original amount of $7,453,330.27 payable from borrower to
Cunat, Inc. (affiliate); Borrower covenant obtained re no sub debt
payments while senior debt is outstanding; Subordination and standstill
agreement obtained for benefit of Lender
Oakview Apts (00-0000000)($4,078,000): Existing unsecured sub debt in
maximum principal amount of $850,000 permitted to Land & Co (affiliated
party); Subordination and standstill agreement obtained for benefit of
Lender
(xxxix) [Compliance with Licenses and Laws].
(xl) [Access; Public Utilities].
(xli) [Flood Insurance].
(xlii) [Trustee under Deed of Trust].
(xliii) [Litigation].
(xliv) [Advances].
(xlv) ["Doing Business" Authorization].
(xlvi) [Collateral Transferred].
(xlvii) [Releases].
(xlviii) [Application of Casualty and Condemnation Proceeds].
(xlix) [UCC Financing Statements].
(l) [Major Lease Defaults].
(li) [Zoning Compliance].
(lii) [Qualified Mortgage for REMIC Purposes] .
(liii) [Defeasance].
(liv) [Non-Recourse Exceptions].
(lv) [APD Loans].
(lvi) [Mortgagor Concentration].
(lvii) [Appraisals].
(lviii) [Fixed Interest Rate].
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of Seller or
any servicer acting on its behalf regarding the matters referred to, in each
case without having conducted any independent inquiry or due diligence with
respect to such matters and without any actual or implied obligation to make
such inquiry or perform such due diligence, other than making such inquiry or
performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of Seller. Wherever there is a
reference to receipt by, or possession of, Seller of any information or
documents, or to any action taken by Seller or not taken by Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either Seller or any servicer acting on its behalf.
Seller hereby represents and warrants, subject to the exceptions set
forth in the Exception Report annexed to this Agreement as Schedule V, with
respect to the Mortgage Loans that as of the date hereinbelow specified or, if
no such date is specified, as of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to Seller), participation
or pledge, and Seller had good and marketable title to, and was the sole owner
of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association, savings bank,
commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act (any of the foregoing, including Seller, a
"Qualified Originator"); or
(B) if originated by a person which is not a Qualified Originator
(any such person, a "Non-Qualified Originator"), then:
1. such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using
application forms and related credit documents approved
by the Qualified Originator;
2. the Qualified Originator approved each application and
related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such
commitment was issued until the Qualified Originator
agreed to fund such Mortgage Loan;
3. the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship
with the Qualified Originator; and
4. the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator,
and, pursuant to the Non-Qualified Originator's ongoing,
standing relationship with the Qualified Originator,
either:
(x) such closing documents reflect the Qualified
Originator as the original mortgagee, and such
Mortgage Loan was actually funded by the Qualified
Originator at the closing thereof;
(y) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(z) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(iii) Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to Depositor constitutes a legal,
valid and binding assignment of such Mortgage Loan;
(iv) Seller is transferring such Mortgage Loan free and clear of any
and all liens, pledges, charges or any other interests or security interests of
any nature encumbering such Mortgage Loan, except for interests in servicing
rights created or granted under the Pooling and Servicing Agreement,
subservicing agreements and/or servicing rights purchase agreements being
executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents and such
other due diligence as a reasonably prudent commercial mortgage lender would
deem appropriate, the borrower, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the Mortgaged
Property which were valid and in full force and effect as of the origination
date and, to Seller's actual knowledge, such licenses, permits and
authorizations are still valid and in full force and effect;
(vi) Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no right of offset, rescission, abatement or diminution or
valid defense or counterclaim available to the related borrower with respect to
such Note, Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each related
Assignment of Leases creates a valid first priority collateral assignment of, or
a valid first priority lien or security interest in, certain rights under the
related lease or leases, subject only to a license granted to the related
borrower to exercise certain rights and to perform certain obligations of the
lessor under such lease or leases, including the right to operate the related
leased property, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); no
person other than the related borrower owns any interest in any payments due
under such lease or leases that is superior to or of equal priority with the
lender's interest therein;
(viii) Each related assignment of Mortgage from Seller to the
Trustee and related assignment of the Assignment of Leases, if the Assignment of
Leases is a separate document from the Mortgage, is in recordable form (but for
the insertion of the name and address of the assignee and any related recording
information, which is not yet available to Seller), and such assignments and any
assignment of any other agreement executed by or for the benefit of the related
borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from Seller to the Trustee constitutes the legal, valid and
binding assignment from Seller to the Trustee, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded in whole or in part and (B) each related
Mortgaged Property has not been released, in whole or in part, from the lien of
the related Mortgage in any manner which materially interferes with the security
intended to be provided by such Mortgage; and since August 9, 2005, no waiver,
consent, modification, assumption, alteration, satisfaction, cancellation,
subordination or rescission which changes the terms of, or the security for, the
Mortgage Loan in any material respect has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
except that, in the case of the CBA Mortgage Loans the related Mortgage
encumbering the related Mortgaged Property also secures one or more other
mortgage loans; and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC Financing Statement has been filed and/or
recorded (or sent for filing or recording) in all places necessary to perfect a
valid security interest in the personal property necessary to operate the
Mortgaged Property as currently operated; and such security interest is a first
priority security interest, subject to any prior purchase money security
interest in such personal property, any personal property leases applicable to
such personal property and any other security interest in such personal property
which do not, individually or in the aggregate, materially interfere with the
security intended to be provided for such Mortgage Loan. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid and enforceable lien on
the property described therein, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). In the case of any Mortgage Loan secured by a hotel, the related loan
documents contain such provisions as are necessary and UCC Financing Statements
have been filed as necessary, in each case, to perfect a valid first priority
security interest in the related operating revenues with respect to such
Mortgaged Property. Notwithstanding the foregoing, no representation is made as
to the perfection of any security interest in rent, operating revenues or other
personal property to the extent that possession or control of such items or
actions other than the filing of UCC Financing Statements are required in order
to effect such perfection;
(xi) Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) Seller has no knowledge that the material representations and
warranties made by the related borrower in the related Mortgage Loan Documents
are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal amount of
such Mortgage Loan or allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related Mortgage) after all
advances of principal and is insured by an ALTA lender's title insurance policy
(except that if such policy is yet to be issued, such insurance may be evidenced
by a "marked up" pro forma policy or title commitment in either case marked as
binding and countersigned by the title company or its authorized agent, either
on its face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the named
mortgagee and its successors and assigns (as sole insured) as to such lien,
subject only to (A) the lien of current real property taxes, water charges,
sewer rents and assessments not yet delinquent or accruing interest or
penalties, (B) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property, (C) the exceptions (general and specific) and exclusions set
forth in such policy, none of which, individually or in the aggregate,
materially interferes with the current general use of the Mortgaged Property or
materially interferes with the security intended to be provided by such Mortgage
or with the related borrower's ability to pay its obligations when they become
due or the value of the Mortgaged Property, (D) the rights of tenants, as
tenants only, under leases, including subleases, pertaining to the related
Mortgaged Property, (E) if the related Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the mortgage instrument for that other
Mortgage Loan and (F) if the related Mortgaged Property is a unit in a
condominium, the related condominium declaration (items (A), (B), (C), (D), (E)
and (F) collectively, "Permitted Encumbrances"), and except that, in the case of
the CBA Mortgage Loans, the related Mortgage encumbering the related Mortgaged
Property also secures one or more other mortgage loans; and with respect to each
Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged Property or
the current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; the premium for such policy was paid
in full; such policy (or if it is yet to be issued, the coverage to be afforded
thereby) is issued by a title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is located (unless such state
is Iowa) and is assignable (with the related Mortgage Loan) to Depositor and the
Trustee without the consent of or any notification to the insurer, and is in
full force and effect upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy and Seller has not
undertaken any action or omitted to take any action, and has no knowledge of any
such act or omission, which would impair or diminish the coverage of such
policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted). If any of the inspection or
engineering reports referred to above in this paragraph (xv) revealed any
immediate repair items, then one of the following is true: (A) the repairs
and/or maintenance necessary to correct such condition have been completed in
all material respects; (B) an escrow of funds is required or a letter of credit
was obtained in an amount reasonably estimated to be sufficient to complete the
repairs and/or maintenance necessary to correct such condition; or (C) the
reasonable estimation at the time of origination of the Mortgage Loan of the
cost to complete the repairs and/or maintenance necessary to correct such
condition represented no more than the greater of (1) $50,000 and (2) 2% of the
value of the related Mortgaged Property as reflected in an appraisal conducted
in connection with the origination of the subject Mortgage Loan; as of the
closing date for each Mortgage Loan and, to Seller's knowledge, as of the date
hereof, there is no proceeding pending for the total or partial condemnation of
such Mortgaged Property that would have a material adverse effect on the use or
value of the Mortgaged Property;
(xvi) Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the related
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan, and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither Seller nor, to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and (i) the origination of each Mortgage Loan is in all respects legal,
proper and prudent in accordance with customary commercial mortgage lending
standards and (ii) the servicing and collection of each Mortgage Loan is in all
respects legal, proper and prudent in accordance with servicing standard and no
other person has been granted or conveyed the right to service the Mortgage
Loans or receive any consideration in connection therewith, except as provided
in the Pooling and Servicing Agreement or any permitted subservicing agreements
and/or servicing rights purchase agreements being executed and delivered in
connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith, all such escrows and deposits are being
conveyed by Seller to Depositor and identified as such with appropriate detail,
and any and all requirements for the disbursement of any such escrows have been
complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all Mortgaged Properties in California or in a seismic zone 4 or 5
have had a seismic assessment done and earthquake insurance was obtained to the
extent any such Mortgaged Property has a probable maximum loss in the event of
an earthquake of greater than twenty percent (20%) of the replacement value of
the related improvements; if the Mortgaged Property for any Mortgage Loan is
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas, then, such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the insurable replacement cost of the improvements located on the
related Mortgaged Property; the Mortgaged Properties securing all of the
Mortgage Loans having a Cut-off Date Principal Balance in excess of $3,000,000
have, as of the date hereof, insurance policies in place with respect to acts of
terrorism or damage related thereto (excluding acts involving nuclear,
biological or chemical terrorism), except any such Mortgage Loans that are
listed on the applicable Exception Report. All premiums on such insurance
policies required to be paid as of the date hereof have been paid; such
insurance policies or the related insurance certificates require prior notice to
the insured of reduction in coverage, termination or cancellation, and no such
notice has been received by Seller; such insurance names the lender under the
Mortgage Loan and its successors and assigns as a named or additional insured;
each related Mortgage Loan obligates the related borrower to maintain all such
insurance and, at such borrower's failure to do so, authorizes the lender to
maintain such insurance at the borrower's cost and expense and to seek
reimbursement therefor from such borrower; (xxiv) There is no monetary default,
breach, violation or event of acceleration existing under the related Mortgage
Loan. To Seller's knowledge, there is no (A) non-monetary default, breach,
violation or event of acceleration existing under the related Mortgage Loan or
(B) event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, which
default, breach, violation or event of acceleration, in the case of either (A)
or (B), would materially and adversely affect the use or value of the Mortgage
Loan or the related Mortgaged Property. Notwithstanding the foregoing, this
representation and warranty does not address or otherwise cover any default,
breach, violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation or warranty made by Seller
elsewhere in this Exhibit A or the Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the borrower which would
interfere with such right to foreclose, except, in the case of either (A) or
(B), as the enforcement of the Mortgage may be limited by bankruptcy,
insolvency, reorganization, moratorium, redemption or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). No borrower is a debtor in a state or federal bankruptcy or insolvency
proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; and the related borrower agreed to indemnify,
defend and hold the mortgagee and its successors and assigns harmless from and
against losses, liabilities, damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by, or asserted against, any such party resulting from a
breach of the foregoing representations, warranties or covenants given by the
borrower in connection with such Mortgage Loan. A Phase I environmental report
(or, with respect to residential cooperative loans with an original principal
balance of $350,000 or less, a transaction screen meeting ASTM standards) and,
with respect to certain Mortgage Loans, a Phase II environmental report was
conducted by a reputable independent environmental consulting firm in connection
with such Mortgage Loan, which report (or transaction screen) did not indicate
any material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or material
existence of hazardous materials was indicated in any such report (or
transaction screen), then at least one of the following statements is true: (A)
funds reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material existence
of hazardous materials have been escrowed by the related borrower and held by
the related mortgagee; (B) if the environmental report recommended an operations
and maintenance plan, but not any material expenditure of funds, an operations
and maintenance plan has been required to be obtained by the related borrower;
(C) the environmental condition identified in the related environmental report
was remediated or abated in all material respects prior to the date hereof; (D)
a no further action or closure letter was obtained from the applicable
governmental regulatory authority (or the environmental issue affecting the
related Mortgaged Property was otherwise listed by such governmental authority
as "closed"); (E) such conditions or circumstances identified in the Phase I
environmental report were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation; (F) a party unrelated to the borrower with financial resources
reasonably estimated to be adequate to cure the condition or circumstance
provided a guaranty or indemnity to the related borrower to cover the costs of
any required investigation, testing, monitoring or remediation; (G) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related Mortgage File. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impaired property environmental insurance
policy was obtained with respect to each such Mortgage Loan. Each of such
secured creditor impaired property environmental insurance policies is a part of
the related Mortgage File. Each of such environmental insurance policies is in
full force and effect, is in an amount not less than the 100% of the balance of
the related Mortgage Loan, and has a term extending not less than five years
after the maturity date of the related Mortgage Loan; the premiums for such
policies have been paid in full; the Trustee is named as an insured under each
of such policies; and Seller has delivered to the insurer all related
environmental reports in its possession. To Seller's knowledge, in reliance on
the environmental reports referred to in the second sentence of this paragraph
(xxvii) and except as set forth in such environmental reports, each Mortgaged
Property is in material compliance with all applicable federal, state and local
environmental laws, and to Seller's knowledge, no notice of violation of such
laws has been issued by any governmental agency or authority, except, in all
cases, as indicated in such environmental reports or other documents previously
provided to the Rating Agencies; and Seller has not taken any action which would
cause the Mortgaged Property to not be in compliance with all federal, state and
local environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related borrower to persons already holding interests in the
borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders) or any transfers in connection with the death or disability of
owners of the borrower or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related borrower in connection
with the assignment of a proprietary lease for a unit in the related Mortgaged
Property by a tenant-shareholder of the related borrower to other persons who by
virtue of such transfers become tenant-shareholders in the related borrower,
each Mortgage Loan also contains the provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage (and the Mortgage requires the mortgagor
to pay all fees and expenses associated with obtaining such consent), a majority
interest in the related borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which Seller has obtained title insurance against losses
arising therefrom or that do not materially and adversely affect the use or
value of such Mortgaged Property. No improvements on adjoining parcels encroach
onto the related Mortgaged Property except for encroachments that do not
materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage, the current use of the Mortgaged Property, or
the related borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-off
Date);
(xxxi) With respect to any Mortgage Loan where all or any portion of
the estate of the related borrower therein is a leasehold estate under a ground
lease, and the related Mortgage does not also encumber the related lessor's fee
interest in such Mortgaged Property, based upon the terms of the ground lease
and any estoppel received from the ground lessor, Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns in a manner that would
adversely affect the security provided by the related
Mortgage. To Seller's knowledge, there has been no material
change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the
related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease
may not be amended, modified, canceled or terminated without
the prior written consent of the lender and that any such
action without such consent is not binding on the lender, its
successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by
the lender) that extends not less than 10 years beyond the
amortization term of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by Seller, the ground lease is not subject
to any liens or encumbrances superior to, or of equal priority
with, the Mortgage, subject to Permitted Encumbrances and
liens that encumber the ground lessor's fee interest;
(E) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent
of the lessor thereunder;
(F) The ground lease is in full force and effect, Seller has no
actual knowledge that any default beyond applicable notice and
grace periods has occurred, and to Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of
the ground lease;
(G) The ground lease or ancillary agreement, which is part of the
Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the
lender;
(H) The lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground
lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All
rights of the lender under the ground lease and the related
Mortgage (insofar as it relates to the ground lease) may be
exercised by or on behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by a prudent commercial mortgage lender. The lessor is not
permitted to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee in the relevant
portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect
the security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the lender
or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses
(except in such cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed
as commercially unreasonable by a prudent commercial mortgage
lender), or to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued
interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of
the related Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as provided
by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the lender as a result of
any casualty or partial condemnation; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for any
reason, including rejection of the ground lease in a
bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the lender would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related Mortgage File that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) Except in the case of the CBA Mortgage Loans with respect
to those Mortgage Loans that are cross-collateralized or cross-defaulted, all
other loans that are cross-collateralized or cross-defaulted with such Mortgage
Loans are being transferred to Depositor hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (B) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
lender or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, in this Exhibit A or in the Exception
Report;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $5,000,000 require that the related borrower be a Single-Purpose
Entity (for this purpose, "Single-Purpose Entity" shall mean an entity, other
than an individual, having organizational documents which provide substantially
to the effect that it is formed or organized solely for the purpose of owning
and operating one or more Mortgaged Properties, is prohibited from engaging in
any business unrelated to such property and the related Mortgage Loan, does not
have any assets other than those related to its interest in the related
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the related Mortgage Loan). To Seller's actual knowledge, each borrower
has fully complied with the requirements of the related Note and Mortgage and
borrower's organizational documents regarding Single-Purpose Entity status;
(xxxviii) Except in cases where the related Mortgaged Property is a
residential cooperative property, each Mortgage Loan prohibits the related
borrower from mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the borrower, without the prior written consent
of the mortgagee or the satisfaction of debt service coverage or similar
criteria specified in the Note or Mortgage which would be acceptable to a
reasonably prudent commercial mortgage lender, and, except in connection with
trade debt and equipment financings in the ordinary course of borrower's
business, from carrying any additional indebtedness, except, in each case, liens
contested in accordance with the terms of the Mortgage Loans or, with respect to
each Mortgage Loan having an original principal balance of less than $4,000,000,
any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the borrower to maintain flood insurance,
or at such borrower's failure to do so, authorizes the lender to maintain such
insurance at the cost and expense of the borrower and such insurance is in full
force and effect in an amount not less than the lesser of (A) the replacement
cost of the material improvements on such Mortgaged Property, (B) the balance of
the Mortgage Loan and (C) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or has been substituted in accordance
with applicable law or may be substituted in accordance with applicable law by
the related mortgagee, and except in connection with a trustee's sale after a
default by the related borrower, no fees are payable to such trustee, and such
fees payable are payable by the borrower;
(xliii) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such borrower's ability to perform under the
related Mortgage Loan;
(xliv) No advance of funds has been made by Seller to the related
borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to Seller's knowledge, been received
from any person other than, or on behalf of, the related borrower, for, or on
account of, payments due on the Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the Note
was authorized to transact and do business in the jurisdiction in which each
related Mortgaged Property is located, or the failure to be so authorized did
not materially and adversely affect the enforceability of such Mortgage Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report or the
Prospectus Supplement with respect to the Crossed Mortgage Loans and Mortgage
Loans secured by multiple, non-contiguous real properties, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (A) payment in full or defeasance of
the related Mortgage Loan, (B) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price at
least 125% of the appraised value of the property to be released or of the
allocated loan amount of such property, (C) releases of unimproved out-parcels
or (D) releases of other portions of the Mortgaged Property which will not have
a material adverse effect on the use or value of the collateral for the related
Mortgage Loan and which were given no value in the appraisal of the Mortgaged
Property or of that portion of the Mortgaged Property used to calculate the
loan-to-value ratio of the Mortgaged Property for underwriting purposes. No
release or partial release of any Mortgaged Property, or any portion thereof,
expressly permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under Treas.
Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (A) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all casualty losses or
takings in excess of a specified amount or percentage of the related loan amount
that a prudent commercial lender would deem satisfactory and acceptable, the
lender (or a trustee appointed by it) having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in any case where a
provision entitling another party to hold and disburse such proceeds would not
be viewed as commercially unreasonable by a prudent commercial mortgage lender)
or (B) to the payment of the outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon;
(xlix) Each UCC Financing Statement, if any, filed with respect to
personal property constituting a part of the related Mortgaged Property and each
assignment, if any, of such UCC Financing Statement to Seller was, and each
assignment, if any, of such UCC Financing Statement in blank which the Trustee
or its designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available to
Seller) is, in suitable form for filing in the filing office in which such UCC
Financing Statement was filed;
(l) To Seller's knowledge, (A) each commercial lease covering more
than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related borrower
that could give rise to the termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject property is located, the improvements located on or forming
part of each Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the related Mortgaged Property. With respect to
Mortgage Loans with a Cut-off Date Principal Balance of over $10,000,000, if the
related Mortgaged Property does not so comply, to the extent Seller is aware of
such non-compliance, it has required the related borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision), the related Mortgaged Property, if acquired by a REMIC in
connection with the default or imminent default of such Mortgage Loan would
constitute "foreclosure property" within the meaning of Code Section 860G(a)(8)
and all Prepayment Premiums and Yield Maintenance Charges with respect to such
Mortgage Loan constitute "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the borrower can pledge
only United States government securities in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the borrower is required to provide an opinion of counsel
that the trustee has a perfected security interest in such collateral prior to
any other claim or interest, (F) the borrower is required to pay all Rating
Agency fees associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and opinions of
counsel, (G) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of counsel
that such defeasance will not cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC for federal or applicable
state tax purposes and (H) with respect to any Significant Loan (as defined in
the Pooling and Servicing Agreement), the borrower must obtain confirmation from
each Rating Agency that the defeasance would not result in such Rating Agency's
withdrawal, downgrade or qualification of the then current rating of any class
of Certificates rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (A) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that, if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the borrower;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no less than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the applicable Master Servicer; and (D) any
cash flow from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the extent such
net cash flow is in excess of the Monthly Payment payable therefrom, be net of
budgeted and discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same borrower and to borrowers
that are Affiliates, accounted for more than 5.0% of the aggregate of the
Cut-off Date Principal Balances of all of the mortgage loans (including the
Mortgage Loans) sold to Depositor by Column Financial, Inc., GMAC Commercial
Mortgage Corporation and General Electric Capital Corporation pursuant to those
certain Mortgage Loan Purchase Agreements, each dated as of November 1, 2005,
between Depositor and Column Financial, Inc., GMAC Commercial Mortgage
Corporation and General Electric Capital Corporation, respectively, as of the
Cut-off Date;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or acquisition
of each Mortgage Loan, Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to Seller's actual
knowledge, had no interest, direct or indirect, in the borrower, the Mortgaged
Property or in any loan made on the security of the Mortgaged Property, and
whose compensation was not affected by the approval or disapproval of the
Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the case of
an ARD Loan after its Anticipated Repayment Date and except for the imposition
of a default rate.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of General Electric Capital
Corporation. ("GECC");
2. that _______________ is the owner and holder of a mortgage loan
in the original principal amount of $______________ secured by a mortgage (the
"Mortgage") on the premises known as ______________ ______________ located in
_____________________;
3. that _______________, after having conducted a diligent
investigation of its records and files, has been unable to locate the following
original note and believes that said original note has been lost, misfiled,
misplaced or destroyed due to a clerical error:
a note in the original sum of $______________ made by
______________, to _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by Depositor to the trustee for the benefit of the holders of the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2005-C5 (the "Trustee") (which assignment may,
at the discretion of Depositor, be made directly by _______________ to the
Trustee), _______________ covenants and agrees (a) promptly to deliver to the
Trustee the original Note if it is subsequently found, and (b) to indemnify and
hold harmless the Trustee and its successors and assigns from and against any
and all costs, expenses and monetary losses arising as a result of
_______________'s failure to deliver said original Note to the Trustee.
GENERAL ELECTRIC CAPITAL CORPORATION
By:____________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2005
