EXHIBIT 4.4
EXECUTION VERSION
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of February 26, 2004
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TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date..................................................................1
Section 2. Closing Date Actions..........................................................................................1
Section 3. Conveyance of Mortgage Loans..................................................................................2
Section 4. Depositor's Conditions to Closing.............................................................................7
Section 5. Seller's Conditions to Closing................................................................................9
Section 6. Representations and Warranties of Seller......................................................................9
Section 7. Obligations of Seller........................................................................................12
Section 8. Crossed Mortgage Loans.......................................................................................15
Section 9. [Reserved]...................................................................................................16
Section 10. Representations and Warranties of Depositor..................................................................16
Section 11. Survival of Certain Representations, Warranties and Covenants................................................17
Section 12. Transaction Expenses.........................................................................................17
Section 13. Recording Costs and Expenses.................................................................................17
Section 14. Notices......................................................................................................17
Section 15. Examination of Mortgage Files................................................................................17
Section 16. Successors...................................................................................................18
Section 17. Governing Law................................................................................................18
Section 18. Severability.................................................................................................18
Section 19. Further Assurances...........................................................................................18
Section 20. Counterparts.................................................................................................18
Section 21. Treatment as Security Agreement..............................................................................18
Section 22. Recordation of Agreement.....................................................................................20
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of February 26, 2004, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or,
if not defined therein, in the Pooling and Servicing Agreement specified on
such Schedule of Transaction Terms.
II. On the Closing Date, and on the terms set forth
herein, Seller has agreed to sell to Depositor and Depositor has agreed to
purchase from Seller the mortgage loans identified on the schedule (the
"Mortgage Loan Schedule") annexed hereto as Schedule II (each such mortgage
loan, a "Mortgage Loan" and, collectively, the "Mortgage Loans"). Depositor
intends to deposit the Mortgage Loans and other assets into a trust fund (the
"Trust Fund") created pursuant to the Pooling and Servicing Agreement and to
cause the issuance of the Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan Schedule to
Xxxxx Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against
receipt by Seller of a written receipt, pursuant to an arrangement between
Seller and the Trustee; provided, however, that Seller shall pay (or cause the
related Borrower to pay) any costs of the assignment or amendment of each
letter of credit described under said item (xvi) required in order for the
Trustee to draw on such letter of credit pursuant to the terms of the Pooling
and Servicing Agreement and shall deliver the related assignment or amendment
documents within thirty (30) days after the Closing Date. In addition, prior
to such assignment or amendment of a letter of credit, Seller will take all
necessary steps to enable the applicable Master Servicer to draw on the
related letter of credit on behalf of the Trustee pursuant to the terms of the
Pooling and Servicing Agreement, including, if necessary, drawing on the
letter of credit in its own name pursuant to written instructions to draw from
the applicable Master Servicer and upon receipt, immediately remitting the
proceeds of such draw (or causing such proceeds to be remitted) to the
applicable Master Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by
Depositor to the Underwriters pursuant to the Underwriting Agreement and (b)
the Private Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate Purchase Agreement. The closing (the "Closing") shall
take place at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx
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 payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price shall be paid by Depositor to Seller or at its direction by wire
transfer in immediately available funds to an account designated by
Seller on or prior to the Closing Date. The "Mortgage Loan Purchase
Price" paid by Depositor shall be equal to $90,136,305.17 (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: (i) each of the Mortgage Loans identified on the Mortgage Loan
Schedule and (ii) all property of Seller described in Section 21(b) of this
Agreement, including, without limitation, (A) all scheduled payments of
interest and principal due on or with respect to the Mortgage Loans after the
Cut-off Date and (B) all other payments of interest, principal or prepayment
premiums received on or with respect to the Mortgage Loans after the Cut-off
Date, other than any such payments of interest or principal or prepayment
premiums that were due on or prior to the Cut-off Date. The Mortgage File for
each Mortgage Loan shall contain the following documents on a collective
basis:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in
the form of Exhibit B hereto and a true and complete copy of the Note),
bearing, or accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment from
the Mortgage Loan Originator either in blank or to Seller, and further
endorsed (at the direction of
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Depositor given pursuant to this Agreement) by Seller, on its face or by
allonge attached thereto, without recourse, either in blank or to the
order of the Trustee in the following form: "Pay to the order of Xxxxx
Fargo Bank, N.A., as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2004-C1, without recourse, representation or
warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or,
if such Mortgage has been returned by the related recording office, (A)
an original, (B) a certified copy or (C) a copy thereof from the
applicable recording office, and originals or counterparts (or originals,
certified copies or copies from the applicable recording office) of any
intervening assignments thereof from the Mortgage Loan Originator to
Seller, in each case in the form submitted for recording or, if recorded,
with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form (except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage
Loan Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C1";
(iv) an original, counterpart or copy of any related Assignment
of Leases (if such item is a document separate from the Mortgage), and
the originals, counterparts or copies of any intervening assignments
thereof from the Mortgage Loan Originator of the Loan to Seller, in each
case in the form submitted for recording or, if recorded, with evidence
of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in recordable
form (except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage
Loan Originator), either in blank or to "Xxxxx Fargo Bank, N.A., as
trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C1";
(vi) an original or true and complete copy of any related
Security Agreement (if such item is a document separate from the
Mortgage), and the originals or copies of any intervening assignments
thereof from the Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), from Seller (or
the Mortgage Loan Originator) either in blank or to "Xxxxx Fargo Bank,
N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2004-C1," which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective under applicable
law);
(viii) originals or copies of all (A) assumption agreements,
(B) modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence of recording thereon or in the
form submitted for recording, in those instances where the terms or
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provisions of the Mortgage, Note or any related security document have
been modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof (together with all endorsements or riders that were issued with
or subsequent to the issuance of such policy), or if the policy has not
yet been issued, the original or a copy of a binding written commitment
(which may be a pro forma or specimen title insurance policy which has
been accepted or approved in writing by the related title insurance
company) or interim binder that is marked as binding and countersigned by
the title company, insuring the priority of the Mortgage as a first lien
on the related Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording
(including the filing number or other similar filing information)
acceptable to the Trustee (including, without limitation, evidence of
such filed or recorded UCC Financing Statement as shown on a written UCC
search report from a reputable search firm, such as Corporation Service
Company, CT Corporation System and the like or printouts of on-line
confirmations from such UCC filing or recording offices or authorized
agents thereof), sufficient to perfect (and maintain the perfection of)
the security interest held by the Mortgage Loan Originator (and each
assignee of record prior to the Trustee) in and to the personalty of the
Borrower at the Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient to
assign each such UCC Financing Statement to the Trustee;
(xii) the original or copy of the power of attorney (with
evidence of recording thereon) granted by the Borrower if the Mortgage,
Note or other document or instrument referred to above was not signed by
the Borrower;
(xiii) with respect to any debt of a Borrower permitted under
the related Mortgage Loan, an original or copy of a subordination
agreement, standstill agreement or other intercreditor, co-lender or
similar agreement relating to such other debt, if any, including any
mezzanine loan documents or preferred equity documents, and a copy of the
promissory note relating to such other debt (if such other debt is also
secured by the related Mortgage);
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement;
(xv) an original or copy of any related Loan Agreement (if
separate from the related Mortgage), and an original or copy of any
related Lock-Box Agreement or Cash Collateral Account Agreement (if
separate from the related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon;
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(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies thereof;
(xviii) the original or a copy of the ground lease and ground
lease estoppels, if any, and any amendments, modifications or extensions
thereto, if any, or certified copies thereof;
(xix) the original or copy of any property management
agreement;
(xx) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable
transfer/assignment documents; and
(xxi) a checklist of the documents included in the subject
Mortgage File.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the
documents and/or instruments required to be delivered pursuant to clauses
(ii), (iv), (viii), (xi) (other than assignments of UCC Financing Statements
to be recorded or filed in accordance with the transfer contemplated by this
Agreement), and (xii) of the last sentence of the first paragraph of this
Section 3, with evidence of recording or filing thereon on the Closing Date,
solely because of a delay caused by the public recording or filing office
where such document or instrument has been delivered for recordation or
filing, Seller: (i) shall deliver, or cause to be delivered, to the Trustee or
its designee a duplicate original or true copy of such document or instrument
certified by the applicable public recording or filing office, the applicable
title insurance company or Seller to be a true and complete duplicate original
or copy of the original thereof submitted for recording or filing; and (ii)
shall deliver, or cause to be delivered, to the Trustee or its designee either
the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate public recording or filing office to be
a true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, within 120 days after
the Closing Date, which period may be extended up to two times, in each case
for an additional period of 45 days (provided that Seller, as certified in
writing to the Trustee prior to each such 45-day extension, is in good faith
attempting to obtain from the appropriate recording or filing office such
original or photocopy). Compliance with this paragraph will satisfy Seller's
delivery requirements under this Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the
documents and/or instruments required to be delivered pursuant to clauses
(ii), (iv), (viii), (xi) (other than assignments of UCC Financing Statements
to be recorded or filed in accordance with the transfer contemplated by this
Agreement) and (xii) of the last sentence of the first paragraph of this
Section 3, with evidence of recording or filing thereon for any other reason,
including without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of this Agreement shall be deemed to
have been satisfied and such non-delivered document or instrument shall be
deemed to have been included in the related Mortgage File if a photocopy of
such non-delivered document or instrument (with evidence of recording or
filing thereon and certified by the appropriate recording or filing office to
be a true and complete copy of the original thereof as filed or recorded) is
delivered to the Trustee or its designee on or before the Closing Date.
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Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any
Mortgage Loan, solely because such UCC Financing Statement has not been
returned by the public filing or recording office where such UCC Financing
Statement has been delivered for filing or recording, Seller shall so notify
the Trustee or its designee and shall not be in breach of its obligations with
respect to such delivery, provided that Seller promptly forwards such UCC
Financing Statement to the Trustee or its designee upon its return, together
with the related original UCC Financing Statement assignment in a form
appropriate for filing or recording.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare
or complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC
Financing Statements to the Trustee to be delivered pursuant to clauses (iii),
(v) and (xi) of the last sentence of the first paragraph of this Section 3
(collectively, the "Assignments"), to submit those Assignments for filing and
recording, as the case may be, in the applicable public filing and recording
offices and to deliver those Assignments to the Trustee or its designee as
those Assignments (or certified copies thereof) are received from the
applicable filing and recording offices with evidence of such filing or
recording indicated thereon. However, in the event Seller engages a
third-party contractor as contemplated in the immediately preceding sentence,
the rights, duties and obligations of Seller pursuant to this Agreement remain
binding on Seller; and, if Seller does not engage a third party as
contemplated by the immediately preceding sentence, then Seller will still be
liable for recording and filing fees and expenses of the Assignments as and to
the extent contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy
to the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee
in trust for the benefit of the Certificateholders. Each such Servicer File
shall contain all documents and records in Seller's possession relating to
such applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, financial statements, operating
statements and any other information provided by the respective Borrower from
time to time, but excluding any documents and other writings not enumerated in
this parenthetical that have been prepared by Seller or any of its Affiliates
solely for internal credit analysis or other internal uses or any
attorney-client privileged communication) that are not required to be a part
of a Mortgage File in accordance with the definition thereof, together with
copies of all instruments and documents which are required to be a part of the
related Mortgage File in accordance with the definition thereof.
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of
such document or instrument in the Mortgage File for any of such Crossed
Mortgage Loans and the inclusion of a copy of such original or certified copy
in each of the Mortgage Files for the other Crossed Mortgage Loans in such
group of Crossed Mortgage Loans, shall be deemed the inclusion of such
original or certified copy, as the case may be, in the Mortgage File for each
such Crossed Mortgage Loan.
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Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in
the name of Seller or any other name, to be transferred to or at the direction
of the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and
collected after the Cut-off Date, together with the accompanying interest
payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage
Loan prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of documents prepared by
Seller or any of its Affiliates solely for internal credit analysis or other
internal uses or any attorney-client privileged communication, shall
immediately vest in Depositor. All Monthly Payments, Principal Prepayments and
other amounts received by Seller and not otherwise belonging to Seller
pursuant to this Agreement shall be sent by Seller within three (3) Business
Days after Seller's receipt thereof to the applicable Master Servicer via wire
transfer for deposit by the applicable Master Servicer into the Collection
Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor, as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements
and any relevant consolidated financial statements of any direct or indirect
parent to clearly reflect that the Mortgage Loans have been transferred to
Depositor and are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's ownership (or the ownership by any of Depositor's assignees) of
the Mortgage Loans. Except for actions that are the express responsibility of
another party hereunder or under the Pooling and Servicing Agreement, and
further except for actions that Seller is expressly permitted to complete
subsequent to the Closing Date, Seller shall, on or before the Closing Date,
take all actions required under applicable law to effectuate the transfer of
the Mortgage Loans by Seller to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
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(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
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reasonably cooperate with the Trustee and the Special Servicer in connection
with any additional powers or revisions thereto that are requested by such
parties.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing
Date, of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; and
all of the representations and warranties of Depositor under this Agreement
shall be true and correct in all material respects as of the Closing Date; and
no event shall have occurred with respect to Depositor which, with notice or
the passage of time, would constitute a material default under this Agreement,
and Seller shall have received certificates to that effect signed by
authorized officers of Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to
Seller and Depositor, duly executed by all signatories other than Seller, as
required pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date of
Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the
United States of America. Seller has conducted and is conducting its
business so as to comply in all material respects with all applicable
statutes and regulations of regulatory bodies or agencies having
jurisdiction over it, except where the failure so to comply would not
have a materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, action, 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.
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(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans and to execute and deliver this
Agreement (and all agreements and documents executed and delivered by Seller
in connection herewith) and to perform all transactions of Seller contemplated
by this Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith). Seller has duly authorized the execution,
delivery and performance of this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith), and has duly
executed and delivered this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith). This Agreement (and
each agreement and document executed and delivered by Seller in connection
herewith), assuming due authorization, execution and delivery thereof by each
other party thereto, constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such enforcement
may be limited by bankruptcy, fraudulent transfer, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the rights of
creditors generally, by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and by
considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and conditions
of this Agreement by Seller, will (A) conflict with or result in a breach of
any of the terms, conditions or provisions of Seller's articles or certificate
of incorporation and bylaws or similar type organizational documents, as
applicable; (B) conflict with, result in a breach of, or constitute a default
or result in an acceleration under, any agreement or instrument to which
Seller is now a party or by which it (or any of its properties) is bound if
compliance therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller in
connection herewith); (C) conflict with or result in a breach of any legal
restriction if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); (D) result in the violation of
any law, rule, regulation, order, judgment or decree to which Seller or its
property is subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); or (E) result in the creation or
imposition of any lien, charge or encumbrance that would have a material
adverse effect upon Seller's ability to perform its duties and obligations
under this Agreement (or any agreement or document executed and delivered by
Seller in connection herewith), or materially impair the ability of Depositor
to realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After giving
effect to its transfer of the Mortgage Loans, as provided herein, the value of
Seller's assets, either taken at their present fair saleable value or at fair
valuation, will exceed the amount of Seller's debts and obligations, including
contingent and unliquidated debts and obligations of Seller, and Seller will
not be left with unreasonably small assets or capital with which to engage in
and conduct its business. Seller does not intend to, and
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does not believe that it will, incur debts or obligations beyond its ability
to pay such debts and obligations as they mature. No proceedings looking
toward liquidation, dissolution or bankruptcy of Seller are pending or
contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body having
jurisdiction or regulatory authority over Seller is required for (A) Seller's
execution, delivery and performance of this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith), (B)
Seller's transfer and assignment of the Mortgage Loans, or (C) the
consummation by Seller of the transactions contemplated by this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or, to the extent so required, such consent, approval,
authorization, order, registration, filing or notice has been obtained, made
or given (as applicable), except for the filing or recording of assignments
and other Mortgage Loan Documents contemplated by the terms of this Agreement
and except that Seller may not be duly qualified to transact business as a
foreign corporation or licensed in one or more states if such qualification or
licensing is not necessary to ensure the enforceability of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of the
Mortgage Loans constitutes at least fair consideration and reasonably
equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller contained
in this Agreement (or any agreement or document executed and delivered by
Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are reasonably
likely to draw into question the validity of this Agreement (or any agreement
or document executed and delivered by Seller in connection herewith) or which,
either in any one instance or in the aggregate, are reasonably likely to
materially impair the ability of Seller to perform its duties and obligations
under this Agreement (or any agreement or document executed and delivered by
Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller in
connection herewith) is in the ordinary course of business of Seller and
Seller's transfer, assignment and conveyance of the Mortgage Loans pursuant to
this Agreement are not subject to the bulk transfer or similar statutory
provisions in effect in any applicable jurisdiction. The Mortgage Loans do not
constitute all or substantially all of Seller's assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation in
connection with the sale of the Mortgage Loans to Depositor hereunder except
for (A) the reimbursement of expenses as described herein or otherwise in
connection with the transactions described in Section 2 hereof and (B) the
commissions or compensation owed to the Underwriters or the Initial Purchaser.
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(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and adversely
affect the ability of Seller to perform its obligations under this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions to such representations and warranties set
forth on Schedule V hereto, are true and correct in all material respects as
of the date hereof with respect to the Mortgage Loans identified on Schedule
II.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of
the Mortgage Loan to be replaced, with respect to any replacement mortgage
loan (a "Replacement Mortgage Loan") that is substituted for a Mortgage Loan
affected by a Material Defect or a Material Breach, pursuant to Section 7 of
this Agreement, each of the representations and warranties set forth in
Exhibit A hereto (references therein to "Closing Date" being deemed to be
references to the "date of substitution" and references therein to "Cut-off
Date" being deemed to be references to the "most recent due date for the
subject Replacement Mortgage Loan on or before the date of substitution").
From and after the date of substitution, each Replacement Mortgage Loan, if
any, shall be deemed to constitute a "Mortgage Loan" hereunder for all
purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or
qualified endorsement on the Notes and notwithstanding subsequent termination
of this Agreement or the Pooling and Servicing Agreement. The representations
and warranties contained in or required to be made by Seller pursuant to
Section 6 of this Agreement shall not be impaired by any review or examination
of the Mortgage Files or other documents evidencing or relating to the
Mortgage Loans or any failure on the part of Depositor to review or examine
such documents and shall inure to the benefit of the initial transferee of the
Mortgage Loans from Depositor including, without limitation, the Trustee for
the benefit of the Holders of the Certificates, notwithstanding (1) any
restrictive or qualified endorsement on any Note, assignment of Mortgage or
reassignment of Assignment of Leases or (2) any termination of this Agreement
prior to the Closing, but shall not inure to the benefit of any subsequent
transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans (subject to
the exceptions to such representations and warranties set forth in the
Exception Report), as of the date hereof in Section 6(a)(xii) or as of the
Closing Date pursuant to Section 4(b)(iii) or, in the case of any Replacement
Mortgage Loan, as of the date of substitution pursuant to Section 6(b) (in any
such case, a "Breach"), or receives notice that (a) any document required to
be included in the Mortgage File related to any Mortgage Loan is not in the
Trustee's (or its designee's) possession within the time period required
herein or (b) such document has not been properly executed or is otherwise
defective on its face (clause (a) and clause (b) each, a "Defect" (which term
shall include the "Defects" detailed in the immediately following paragraph)
in the related Mortgage File), and if such Breach or Defect, as the case may
be, materially and adversely affects, or is deemed hereby to materially and
adversely affect, the value of any Mortgage Loan or any successor REO Loan
with respect thereto or the interests of the Holders of any Class of
Certificates (in which case
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such Breach or Defect shall be a "Material Breach" or a "Material Defect", as
applicable), then Seller shall, upon written request of Depositor, the
Trustee, the applicable Master Servicer or the applicable Special Servicer,
not later than 90 days after the receipt by Seller of such written request
(subject to the second succeeding paragraph, the "Initial Resolution Period"):
(i) cure such Breach or Defect in all material respects; (ii) repurchase the
affected Mortgage Loan at the applicable Purchase Price (as defined in the
Pooling and Servicing Agreement); or (iii) substitute, in accordance with the
Pooling and Servicing Agreement, one or more Qualified Substitute Mortgage
Loans (as defined in the Pooling and Servicing Agreement) for such affected
Mortgage Loan (provided that in no event shall any substitution occur later
than the second anniversary of the Closing Date) and pay the applicable Master
Servicer for deposit into the applicable Collection Account any Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement) in
connection therewith; provided, however, that if (i) such Material Breach or
Material Defect is capable of being cured but not within the Initial
Resolution Period, (ii) such Material Breach or Material Defect does not cause
the related Mortgage Loan not to be a "qualified mortgage" (within the meaning
of Section 860G(a)(3) of the Code), (iii) Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) Seller has delivered to the
Rating Agencies, the applicable Master Servicer, the applicable Special
Servicer and the Trustee an Officer's Certificate that describes the reasons
that the cure was not effected within the Initial Resolution Period and the
actions that it proposes to take to effect the cure and that states that it
anticipates the cure will be effected within the additional 90-day period,
then Seller shall have an additional 90 days to cure such Material Defect or
Material Breach. If any Breach pertains to a representation or warranty that
the related Mortgage Loan Documents or any particular Mortgage Loan Document
requires the related Borrower to bear the costs and expenses associated with
any particular action or matter under such Mortgage Loan Document(s), then
Seller shall cure such Breach within the Initial Resolution Period by
reimbursing the Trust Fund (by wire transfer of immediately available funds)
the reasonable amount of any such costs and expenses incurred by the
applicable Master Servicer, the applicable Special Servicer, the Trustee or
the Trust Fund that are the basis of such Breach and have not been reimbursed
by the related Borrower; provided, however, that in the event any such costs
and expenses exceed $10,000, Seller shall have the option to either repurchase
the related Mortgage Loan at the applicable Purchase Price or pay such costs
and expenses. Except as provided in the proviso to the immediately preceding
sentence, Seller shall remit the amount of such costs and expenses and upon
its making such remittance, Seller shall be deemed to have cured such Breach
in all respects. With respect to any repurchase of a Mortgage Loan hereunder
or any substitution of one or more Qualified Substitute Mortgage Loans for a
Mortgage Loan hereunder, (A) no such substitution may be made in any calendar
month after the Determination Date for such month; (B) scheduled payments of
principal and interest due with respect to the Qualified Substitute Mortgage
Loan(s) after the month of substitution, and scheduled payments of principal
and interest due with respect to each Mortgage Loan being repurchased or
replaced after the related Cut-off Date and received by the applicable Master
Servicer or the applicable Special Servicer on behalf of the Trust on or prior
to the related date of repurchase or substitution, shall be part of the Trust
Fund; and (C) scheduled payments of principal and interest due with respect to
such Qualified Substitute Mortgage Loan(s) during or prior to the month of
substitution, and scheduled payments of principal and interest due with
respect to each Mortgage Loan being repurchased or replaced and received by
the applicable Master Servicer or the applicable Special Servicer on behalf of
the Trust after the related date of repurchase or substitution, shall not be
part of the Trust Fund, and Seller (or, if applicable, any person effecting
the related repurchase or substitution in the place of Seller) shall be
entitled to receive such payments promptly following receipt by the applicable
Master Servicer or the applicable Special Servicer, as applicable, under the
Pooling and Servicing Agreement.
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Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File
of the original signed Note, unless the Mortgage File contains a signed lost
note affidavit and indemnity; (b) the absence from the Mortgage File of the
original signed Mortgage, unless there is included in the Mortgage File a
certified copy of the Mortgage as recorded or as sent for recordation,
together with a certificate stating that the original signed Mortgage was sent
for recordation, or a copy of the Mortgage and the related recording
information; (c) the absence from the Mortgage File of the item called for by
clause (ix) of the last sentence of the first paragraph of Section 3 hereof;
(d) the absence from the Mortgage File of any intervening assignments required
to create an effective assignment to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment as recorded or as sent for recordation, together with a
certificate stating that the original intervening assignment was sent for
recordation, or a copy of the intervening assignment and the related recording
information; or (e) the absence from the Mortgage File of any required
original letter of credit, provided that such Defect may be cured by any
substitute letter of credit or cash reserve on behalf of the related Borrower;
or (f) the absence from the Mortgage File of the original or a copy of any
required ground lease. In addition, Seller shall cure any Defect described in
clause (b), (c), (e) or (f) of the immediately preceding sentence as required
in Section 2.02(b) of the Pooling and Servicing Agreement. Notwithstanding
anything herein to the contrary, the failure to include a document checklist
in a Mortgage File shall in no event constitute a Material Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach", as applicable, and
the Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject
to extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If
(i) any Mortgage Loan is required to be repurchased or substituted for as
provided above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a
part of a Mortgage Group (as defined below) and (iii) the applicable Breach or
Defect does not constitute a Breach or Defect, as the case may be, as to any
other Crossed Mortgage Loan in such Mortgage Group (without regard to this
paragraph), then the applicable Breach or Defect, as the case may be, will be
deemed to constitute a Breach or Defect, as the case may be, as to any other
Crossed Mortgage Loan in the Mortgage Group for purposes of the above
provisions, and Seller will be required to repurchase or substitute for such
other Crossed Mortgage Loan(s) in the related Mortgage Group in accordance
with the provisions of this Section 7 unless such other Crossed Mortgage Loans
satisfy the Crossed Mortgage Loan Repurchase Criteria (as defined in the
Pooling and Servicing Agreement) and Seller can satisfy all other criteria for
substitution or repurchase of the affected Mortgage Loan(s) set forth in the
Pooling and Servicing Agreement. In the event that one or more of such other
Crossed Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase Criteria,
Seller may elect either to repurchase or substitute for only the affected
Crossed Mortgage Loan as to which the related Breach or Defect exists or to
repurchase or substitute for all of the Crossed Mortgage Loans in the related
Mortgage Group. Seller shall be responsible for the cost of any Appraisal
required to be obtained by the applicable Master Servicer to
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determine if the Crossed Mortgage Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal has been approved
by Seller (such approval not to be unreasonably withheld). For purposes of
this paragraph, a "Mortgage Group" is any group of Mortgage Loans identified
as a Mortgage Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all
of the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not
be obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan Documents and the remaining
Mortgaged Property(ies) satisfy the requirements, if any, set forth in the
Mortgage Loan Documents and (i) Seller provides an opinion of counsel to the
effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be paid) the applicable release price required under the Mortgage
Loan Documents and, to the extent not reimbursable out of the release price
pursuant to the related Mortgage Loan Documents, any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred
by the applicable Master Servicer, the applicable Special Servicer, the
Trustee or the Trust Fund in connection therewith, including any unreimbursed
advances and interest thereon made with respect to the Mortgaged Property that
is being released and (iii) such cure by release of such Mortgaged Property is
effected within the time periods specified for cure of a Material Breach or
Material Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the
account designated by Depositor or the Trustee, as the case may be, and
Depositor or the Trustee, as the case may be, upon receipt of such funds (and,
in the case of a substitution, receipt of the Mortgage File(s) for the related
Qualified Substitute Mortgage Loans(s)), shall promptly release the related
Mortgage File and Servicer File or cause them to be released, to Seller and
shall execute and deliver such instruments of transfer or assignment as shall
be necessary to vest in Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds
of any insurance policy with respect thereto) and the related Mortgage Loan
Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect
affecting a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed
above while the Trustee continues to hold any related Crossed Mortgage Loans,
Seller and Depositor (on behalf of its successors and assigns) agree to modify
upon such repurchase or substitution, the related Mortgage Loan Documents in a
manner such that such affected Crossed Mortgage Loan repurchased or
substituted by Seller, on the one hand, and any related Crossed Mortgage Loans
still held by the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have
furnished the Trustee, at Seller's expense, with an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event; and provided,
further, that if such Opinion of Counsel cannot be furnished, Seller and
Depositor hereby agree
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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. [Reserved]
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own its assets and conduct its business
as it is conducted, and is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its property
or the conduct of its business requires such qualification (except where the
failure to qualify would not have a materially adverse effect on the
consummation of any transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result
in a breach of, or constitute a default under, the certificate of
incorporation or by-laws of Depositor or, after giving effect to the consents
or taking of the actions contemplated by clause (ii) of this paragraph (b),
any of the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on Depositor or its properties, or any of the
provisions of any material indenture or mortgage or any other material
contract or other instrument to which Depositor is a party or by which it is
bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, contract or other instrument or (ii) require 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
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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.:
(000) 000-0000 (with a copy to Xxxxx Xxxxxx, Telecopy No.: (000) 000-0000), or
such other address or telecopy number as may be designated by Depositor to
Seller in writing, or (b) if sent to Seller, will be mailed, delivered or
telecopied and confirmed to it at KeyBank National Association, 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx,
Telecopy No.: (000) 000-0000 (with a copy to Xxxxxx X. Xxxxx, 000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000, Telecopy No.: (000) 000-0000), 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.
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Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective
successors, permitted assigns and legal representatives, and nothing expressed
in this Agreement is intended or shall be construed to give any other Person
any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of such Persons and for the benefit of no other Person;
it being understood that (a) the indemnities of Seller contained in that
certain Indemnification Agreement dated February 26, 2004, among Seller,
Depositor, the Initial Purchaser and the Underwriters, relating to, among
other things, information regarding the Mortgage Loans in the Prospectus
Supplement and the Offering Circular, subject to all limitations therein
contained, shall also be for the benefit of the officers and directors of
Depositor, the Underwriters and the Initial Purchaser and any person or
persons who control Depositor, the Underwriters and the Initial Purchaser
within the meaning of Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended, and (b) the rights of Depositor
pursuant to this Agreement, subject to all limitations herein contained,
including those set forth in Section 7 of this Agreement, may be assigned to
the Trustee, for benefit of the Certificateholders, as may be required to
effect the purposes of the Pooling and Servicing Agreement and, upon such
assignment, the Trustee shall succeed to such rights of Depositor hereunder;
provided that the Trustee shall have no right to further assign such rights to
any other Person. No owner of a Certificate issued pursuant to the Pooling and
Servicing Agreement shall be deemed a successor or permitted assign because of
such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts),
each of which when so executed and delivered will be an original, and all of
which together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by
Seller to Depositor as provided in this Agreement be, and be construed as, a
sale of the Mortgage Loans by Seller to Depositor. It is, further, not the
intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by Seller to Depositor to secure a debt or other obligation of
Seller. However, in the event that, notwithstanding the intent of the parties,
the Mortgage Loans are held to be property of Seller or if for any reason this
Agreement is held or deemed to create a security interest in the Mortgage
Loans:
-18-
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in
the applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising from or
relating to any of the property described in the Mortgage Loans,
including the related Notes, Mortgages and title, hazard and other
insurance policies, identified on the Mortgage Loan Schedule or that
constitute Replacement Mortgage Loans, and all distributions with respect
thereto payable after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property arising from or by virtue of the disposition of, or
collections with respect to, or insurance proceeds payable with respect
to, or claims against other persons with respect to, all or any part of
the collateral described in clause (i) above (including any accrued
discount realized on liquidation of any investment purchased at a
discount), in each case, payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-306, 9-313 and 9-314 thereof) as in force in the relevant
jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Depositor or its assignee, shall, to
the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security
interest would be a perfected security interest of first priority under
applicable law and will be maintained as such throughout the term of this
Agreement. In connection herewith, Depositor and its assignee shall have all
of the rights and remedies of a secured party and creditor under the Uniform
Commercial Code as in force in the relevant jurisdiction and may prepare and
file such UCC Financing Statements as may be necessary or appropriate to
accomplish the foregoing.
-19-
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.
* * *
-20-
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.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated
as of February 26, 2004, between KeyBank National Association and Credit
Suisse First Boston Mortgage Securities Corp. Capitalized terms used herein
without definition have the meanings given them in or by reference in the
Agreement or, if not defined in the Agreement, in the Pooling and Servicing
Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"CBA Mortgage Loan" means any Mortgage Loan that constitutes a "CBA
A Loan" under the Pooling and Servicing Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated February 26, 2004, between Depositor and the Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C1.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means March 12, 2004.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in March 2004.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Depositor" shall have the meaning given such term in the first
sentence of this Agreement.
SCH. I-1
"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
February 26, 2004, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of March
11, 2004, among Depositor, the Master
SCH. I-2
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 November 10, 2003, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-97955).
"Prospectus Supplement" means the Prospectus Supplement, dated
February 26, 2004, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-4, Class B and Class C Certificates.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3.
"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, McDonald
Investments Inc., PNC Capital Markets, Inc., Xxxxxx Brothers Inc. and WaMu
Capital Corp.
"Underwriting Agreement" means the Underwriting Agreement, dated
February 26, 2004, between Depositor and the Underwriters.
SCH. I-3
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Servicing
# Group Crossed Loan Name Address
---------------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park 8181 Herald Cove
---------------------------------------------------------------------------------------------------------------------
25 2 Northlake Commons Shopping Center 0000 Xxxxxxxxx Xxxxxxxxx
---------------------------------------------------------------------------------------------------------------------
27 2 Village Market Shopping Center 5760 - 0000 Xxxxx 000xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio
---------------------------------------------------------------------------------------------------------------------
36A Xxxxx Xxxxxxxx 1005 and 0000 Xxxx Xxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo 000 0xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
36C Xxxxx Springdale 0000 Xxxxx Xxxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
36D Xxxxx Joplin 0000 Xxxx 0xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
36E Xxxxx Ocean Springs 0000 Xxxxxxxxx Xxxxxxxxx
---------------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx 0000 Xxxxx 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx 0000 Xxxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------
36H Xxxxx Angola 0000 Xxxxx Xxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxx 000 Xxxx Xxxxx Xxxxxxxxx
---------------------------------------------------------------------------------------------------------------------
50 2 North Batavia Business Park 1401, 1403, 1407, 1411, and 0000 Xxxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center 0000-0000 Xxxx Xxxxxx L
---------------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine 8392 Power Inn Road
---------------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys 00000 Xxxxxxx Xxx
---------------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments 0000 Xxxxxxxx Xxxxx
---------------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza 0000-0000 Xxxxx 00xx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
Servicing Zip
# Group Crossed Loan Name City State Code
------------------------------------------------------------------------------------------------------------
20 0 Xxxxxxxx xx Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
25 0 Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
27 0 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio
------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxxxx Xxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxxx Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxx Xxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
36E Xxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxx Xxxxx Xxxx Xxxxx XX 00000
------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx Xxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
36H Xxxxx Xxxxxx Xxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxx Xxxx XX 00000
------------------------------------------------------------------------------------------------------------
50 0 Xxxxx Xxxxxxx Xxxxxxxx Xxxx Xxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
65 0 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine Xxx Xxxxx XX 00000
------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Xxx Xxxx Xxx Xxxx XX 00000
------------------------------------------------------------------------------------------------------------
100 0 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxx XX 00000
------------------------------------------------------------------------------------------------------------
108 0 Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
------------------------------------------------------------------------------------------------------------
SCH.II-1
Original Cut-off Date Original Net
Servicing Principal Principal Amortization Interest Mortgage
# Group Crossed Loan Name Balance Balance Term Rate Rate
------------------------------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park $18,000,000 $17,960,149 360 5.4500% 5.3982%
------------------------------------------------------------------------------------------------------------------------------------
25 2 Northlake Commons Shopping Center $13,376,000 $13,376,000 Interest Only 4.9600% 4.9082%
------------------------------------------------------------------------------------------------------------------------------------
27 2 Village Market Shopping Center $12,240,000 $12,225,140 360 5.6900% 5.6382%
------------------------------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio $10,400,000 $10,383,400 300 6.0700% 5.9682%
------------------------------------------------------------------------------------------------------------------------------------
36A Xxxxx Xxxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo
------------------------------------------------------------------------------------------------------------------------------------
36C Xxxxx Springdale
------------------------------------------------------------------------------------------------------------------------------------
36D Xxxxx Joplin
------------------------------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx
------------------------------------------------------------------------------------------------------------------------------------
36H Xxxxx Angola
------------------------------------------------------------------------------------------------------------------------------------
36I Xxxxx Lima
------------------------------------------------------------------------------------------------------------------------------------
50 0 Xxxxx Xxxxxxx Xxxxxxxx Xxxx $8,200,000 $8,183,230 360 5.8700% 5.7682%
------------------------------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center $6,207,000 $6,166,492 300 6.3700% 6.3182%
------------------------------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine $5,550,000 $5,533,700 300 5.9000% 5.7982%
------------------------------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys $4,400,000 $4,390,846 360 5.7800% 5.7282%
------------------------------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments $4,044,000 $4,026,436 300 5.7700% 5.6682%
------------------------------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza $3,825,000 $3,805,694 324 5.7500% 5.6982%
------------------------------------------------------------------------------------------------------------------------------------
Remaining Original Units/Sq.Ft./ Remaining
Servicing Amortization Term to Rooms;/Pads Term to
# Group Crossed Loan Name Term Maturity Maturity
--------------------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park 358 120 327 118
--------------------------------------------------------------------------------------------------------------------------
25 2 Northlake Commons Shopping Center Interest Only 84 146,816 82
--------------------------------------------------------------------------------------------------------------------------
27 2 Village Market Shopping Center 359 120 90,252 119
--------------------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio 299 120 119
--------------------------------------------------------------------------------------------------------------------------
36A Xxxxx Xxxxxxxx 23,892
--------------------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo 18,452
--------------------------------------------------------------------------------------------------------------------------
36C Xxxxx Springdale 14,035
--------------------------------------------------------------------------------------------------------------------------
36D Xxxxx Xxxxxx 13,649
--------------------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxx Xxxxxxx 12,916
--------------------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx 12,072
--------------------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx 11,827
--------------------------------------------------------------------------------------------------------------------------
36H Xxxxx Angola 10,054
--------------------------------------------------------------------------------------------------------------------------
36I Xxxxx Lima 10,846
--------------------------------------------------------------------------------------------------------------------------
50 0 Xxxxx Xxxxxxx Xxxxxxxx Xxxx 358 120 129,426 118
--------------------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center 295 144 76,183 139
--------------------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine 298 120 93,720 118
--------------------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys 358 120 54,403 118
--------------------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments 297 120 168 117
--------------------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza 320 84 23,990 80
--------------------------------------------------------------------------------------------------------------------------
SCH. II-2
First
Servicing Interest Calculation Monthly Payment
# Group Crossed Loan Name (30/360 / Actual/360) Payment Date
---------------------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park Actual/360 $101,638 2/1/2004
---------------------------------------------------------------------------------------------------------------------------
25 2 Northlake Commons Shopping Center 30/360 $55,287 2/1/2004
---------------------------------------------------------------------------------------------------------------------------
27 2 Village Market Shopping Center Actual/360 $70,963 3/1/2004
---------------------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio Actual/360 $67,453 3/1/2004
---------------------------------------------------------------------------------------------------------------------------
36A Xxxxx Xxxxxxxx
---------------------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo
---------------------------------------------------------------------------------------------------------------------------
36C Xxxxx Springdale
---------------------------------------------------------------------------------------------------------------------------
36D Xxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx
---------------------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx
---------------------------------------------------------------------------------------------------------------------------
36H Xxxxx Angola
---------------------------------------------------------------------------------------------------------------------------
36I Xxxxx Lima
---------------------------------------------------------------------------------------------------------------------------
50 2 North Batavia Business Park Actual/360 $48,480 2/1/2004
---------------------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center Actual/360 $41,407 11/1/2003
---------------------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine Actual/360 $35,420 2/1/2004
---------------------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys Actual/360 $25,761 2/1/2004
---------------------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments Actual/360 $25,490 1/1/2004
---------------------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza Actual/360 $23,274 12/1/2003
---------------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
Original
Lockout Lockout
Servicing Maturity Period Expiration
# Group Crossed Loan Name Date ARD (Months) Date
-------------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park 1/1/2014 N/A 117 11/1/2013
-------------------------------------------------------------------------------------------------------------------
25 2 Northlake Commons Shopping Center 1/1/2011 N/A 0 N/A
-------------------------------------------------------------------------------------------------------------------
27 2 Village Market Shopping Center 2/1/2014 N/A 117 12/1/2013
-------------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio 2/1/2014 N/A 117 12/1/2013
-------------------------------------------------------------------------------------------------------------------
36A Xxxxx Xxxxxxxx
-------------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo
-------------------------------------------------------------------------------------------------------------------
36C Xxxxx Springdale
-------------------------------------------------------------------------------------------------------------------
36D Xxxxx Joplin
-------------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx
-------------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx
-------------------------------------------------------------------------------------------------------------------
36H Xxxxx Angola
-------------------------------------------------------------------------------------------------------------------
36I Xxxxx Lima
-------------------------------------------------------------------------------------------------------------------
50 0 Xxxxx Xxxxxxx Xxxxxxxx Xxxx 1/1/2014 N/A 117 11/1/2013
-------------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center 10/1/2015 N/A 141 8/1/2015
-------------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine 1/1/2014 N/A 117 11/1/2013
-------------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys 1/1/2014 N/A 117 11/1/2013
-------------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments 12/1/2013 N/A 117 10/1/2013
-------------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza 11/1/2010 N/A 59 11/1/2008
-------------------------------------------------------------------------------------------------------------------
SCH. II-3
Servicing
and
Servicing Defeasance Trustee Earthquake
# Group Crossed Loan Name Due Date Option Fees Insurance
----------------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park 1 Yes 0.0518% N/A
----------------------------------------------------------------------------------------------------------------------
25 2 Northlake Commons Shopping Center 1 No 0.0518% N/A
----------------------------------------------------------------------------------------------------------------------
27 2 Village Market Shopping Center 1 Yes 0.0518% N/A
----------------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio 1 Yes 0.1018% N/A
----------------------------------------------------------------------------------------------------------------------
36A Xxxxx Xxxxxxxx
----------------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo
----------------------------------------------------------------------------------------------------------------------
36C Xxxxx Springdale
----------------------------------------------------------------------------------------------------------------------
36D Xxxxx Xxxxxx
----------------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx
----------------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx
----------------------------------------------------------------------------------------------------------------------
36H Xxxxx Angola
----------------------------------------------------------------------------------------------------------------------
36I Xxxxx Lima
----------------------------------------------------------------------------------------------------------------------
50 2 North Batavia Business Park 1 Yes 0.1018% No
----------------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center 1 Yes 0.0518% No
----------------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine 1 Yes 0.1018% No
----------------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys 1 Yes 0.0518% No
----------------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments 1 Yes 0.1018% N/A
----------------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza 1 No 0.0518% N/A
----------------------------------------------------------------------------------------------------------------------
[TABLE CONTINUED]
Environmental Co-Op
Servicing Insurance LTV as Letter of
# Group Crossed Loan Name Policy Co-Op Credit
-----------------------------------------------------------------------------------------------------------------
20 2 Villages at Xxxxxxxx Park No N/A $1,000,000
-----------------------------------------------------------------------------------------------------------------
25 0 Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xx X/X X/X
-----------------------------------------------------------------------------------------------------------------
27 0 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx Xx X/X X/X
-----------------------------------------------------------------------------------------------------------------
36 2 Xxxxx Portfolio No N/A
-----------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxxxx X/X
-----------------------------------------------------------------------------------------------------------------
36B Xxxxx Baraboo N/A
-----------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxxxxxx X/X
-----------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxxx X/X
-----------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxxx Xxxxxxx X/X
-----------------------------------------------------------------------------------------------------------------
36F Xxxxx Fort Xxxxx N/A
-----------------------------------------------------------------------------------------------------------------
36G Xxxxx Xxxxxxx N/A
-----------------------------------------------------------------------------------------------------------------
36H Xxxxx Xxxxxx X/X
-----------------------------------------------------------------------------------------------------------------
00X Xxxxx Xxxx X/X
-----------------------------------------------------------------------------------------------------------------
50 2 North Batavia Business Park Yes N/A N/A
-----------------------------------------------------------------------------------------------------------------
65 2 Somerset Village Shopping Center No N/A N/A
-----------------------------------------------------------------------------------------------------------------
76 2 Storage USA - Calvine No N/A N/A
-----------------------------------------------------------------------------------------------------------------
91 2 Safe Self Storage - Van Nuys No N/A N/A
-----------------------------------------------------------------------------------------------------------------
100 2 Arlington Farms Apartments No N/A N/A
-----------------------------------------------------------------------------------------------------------------
108 2 Outback Steakhouse Plaza No N/A N/A
-----------------------------------------------------------------------------------------------------------------
SCH.II-4
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCH. III-1
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCH. IV-1
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Exception (x):
-------------
With respect to Loan No. 10019373/Xxxxx Portfolio, the related
Mortgage Loan is the first priority "A Loan" of an A/B structured loan
transaction. The corresponding subordinate "B Loan" is owned by CBA-Mezzanine
Capital Finance, LLC (or an Affiliate thereof) and is not included in the sale
by the Seller to the Purchaser. The related Mortgage secures both the Mortgage
Loan (with a first priority lien) and the corresponding "B Loan" (with a
subordinate lien thereto).
Exception (xiii):
----------------
With respect to Loan No. 10019373/Xxxxx Portfolio, the Mortgage Loan
is the first priority "A Loan" of an A/B structured loan transaction. The
corresponding subordinate "B Loan" is owned by CBA-Mezzanine Capital Finance,
LLC (or an Affiliate thereof) and is not included in the sale by the Seller to
the Purchaser. The Mortgage and title insurance policy are each in the amount
of the sum of the principal balances of the Mortgage Loan and the
corresponding subordinate "B Loan".
Exception (xx):
--------------
Correspondent fees are payable with respect to each of the following
Mortgage Loans:
Loan No. 10019373/Xxxxx Portfolio
Loan No. 10021563/Arlington Farm Apartments
Loan No. 10021635/Calvine Storage USA
Loan Xx. 000000000/Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Exception (xxiii):
-----------------
With respect to Loan No. 10021857/Northlake Commons Shopping Center,
acts of terrorism are included in the blanket insurance policy with a
sub-limit of $50,000,000. The original principal balance of such Mortgage Loan
was $13,376,000.
SCH. V-1
With respect to Loan Xx. 00000000/Xxxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx,
the related Mortgage Loan documents provide that the borrower is required to
maintain insurance coverage for acts of terrorism if such coverage is
commercially reasonable for properties similar to the Mortgaged Property,
provided, however that the related borrower will not be required to maintain
such terrorism coverage if (i) borrower confirms in writing that it will
protect and hold the mortgagee harmless from losses associated with terrorism
risks by, among other things, depositing with the mortgagee sums sufficient to
pay all uninsured costs related to a restoration following any act of
terrorism, or prepaying the related Mortgage Loan in accordance with the
provisions of the related Mortgage Loan documents (including payment of
applicable prepayment consideration), and (ii) the indemnitor for the related
Mortgage Loan executes a guaranty pursuant to which such indemnitor guarantees
payment of all losses associated with terrorism risks and such indemnitor
maintains a specified net worth and a specified loan to value ratio for all
properties in which such entity has a direct or indirect ownership interest.
With respect to Loan Xx. 00000000/Xxxxx Xxxxxxx Xxxxxxxx Xxxxxx, the
related Borrower is only required to obtain terrorism coverage if such
coverage is available at a commercially reasonable rate as calculated in
accordance with criteria specified in the loan documents. Terrorism coverage
is currently maintained with respect to both such Mortgage Loans.
Exception (xxvii):
-----------------
With respect to Loan No. 1002187/Northlake Commons Shopping Center,
a Phase I environmental site assessment conducted on the related Mortgaged
Property reported that a dry cleaner was operated at the Mortgaged Property
from approximately 1990 through 1991. A drop-off only dry cleaner operated at
the same location until 1999; however, the dry cleaning equipment remained at
the Mortgaged Property until 1999, and a drum of dry cleaning solvent remained
at the Mortgaged Property until 2002. Subsurface investigations were conducted
at the Mortgaged Property in 1992 and 1996. The subsurface investigations
identified perchloroethene (PCE) and trichloroethene (TCE) in groundwater at
concentrations above regulatory limits. The dry cleaner was accepted into the
Florida Dry Cleaning Solvent Cleanup Program on November 27, 1996. The Phase I
consultant has recommended that closure of the groundwater contamination
resulting from the dry cleaner operation be obtained in accordance with state
regulations. Because the dry cleaner has been accepted into the Florida Dry
Cleaning Solvent Cleanup Program, any further investigation and cleanup at the
Mortgaged Property will likely be conducted by a state-appointed and funded
contractor.
Exception (xxxiii):
------------------
With respect to Loan No. 10019373/Xxxxx Portfolio, the related
Mortgage Loan is the "A/Loan" of an A/B structured loan transaction. The
related Mortgage also secures the corresponding B/Note (which is not included
in the sale by Seller to the Purchaser) and the related Mortgage Loan
documents are cross-defaulted with the corresponding B/Note.
Exception (xxxvi):
-----------------
SCH. V-2
With respect to Loan No. 10019373/Xxxxx Portfolio, the related
Mortgage Loan is the "A Loan" of an A/B structured loan transaction. The
corresponding "B Loan" is owned by CBA-Mezzanine Capital Finance, LLC (or an
Affiliate thereof) and is not included in the sale by the Seller to the
Purchaser. The related Mortgage secures both the Mortgage Loan and the "B
Loan".
Exception (xxxviii):
-------------------
With respect to Loan No. 10021635/Calvine Storage USA, after the
fifth loan year members of the related borrower may obtain financing secured
by pledges of their cash distributions under the operating agreement of the
borrowing entity upon the prior written consent of the holder of the related
Mortgage and the satisfaction of certain conditions, including specified debt
service coverage and loan to value ratios, execution of an intercreditor and
subordination agreement by an institutional mezzanine lender, establishment of
a lockbox arrangement and receipt of rating agency confirmation.
Exception (xl):
--------------
With respect to Loan Xx. 00000000/Xxxxxxx Xxxxxxx, XXX, a contiguous
parcel that was recently conveyed to a third party and is not a part of the
Mortgaged Property is included in the Mortgaged Property's tax parcel. All
documentation necessary to cause the Mortgaged Property to be a separate tax
parcel has been completed, but a separate tax parcel number has not yet been
issued. The mortgagee is escrowing for taxes for all property included within
such tax parcel until such time that it receives satisfactory evidence the
Mortgaged Property is a separate tax parcel.
Exception (xlvii):
-----------------
With respect to Loan No. 10021635/Calvine Storage USA, if the
Sacramento Regional Transit District exercises its rights pursuant to a
recorded Irrevocable Offer to Dedicate Real Property and Reservation of Real
Property Agreement, two portions of the Mortgaged Property may be required to
be released to enable the borrower to convey such portions of the Mortgaged
Property to the Sacramento Regional Transit District. One such portion
consists of a 40 foot unimproved strip and the other portion includes a 8,269
square foot building. In connection with any such release, Borrower must
satisfy specified conditions, including evidence of no violation of
subdivision map act, delivery of a downdate of title policy and new survey,
delivery of a REMIC opinion upon mortgagee's request, and, with respect to any
release of the portion including the 8,269 square foot building, depositing
with mortgagee all proceeds to be held by mortgagee as additional collateral
for the Mortgage Loan.
SCH. V-3
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of Seller
or any servicer acting on its behalf regarding the matters referred to, in
each case without having conducted any independent inquiry or due diligence
with respect to such matters and without any actual or implied obligation to
make such inquiry or perform such due diligence, other than making such
inquiry or performing such due diligence as would be customarily performed by
prudent commercial or multifamily mortgage lenders or servicers (as the case
may be) with respect to similar mortgage loans or mortgaged properties. All
information contained in documents which are part of or required to be part of
a Mortgage File shall be deemed to be within the knowledge of Seller. Wherever
there is a reference to receipt by, or possession of, Seller of any
information or documents, or to any action taken by Seller or not taken by
Seller, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking of
such action by, either Seller or any servicer acting on its behalf.
Seller hereby represents and warrants, subject to the exceptions set
forth in the Exception Report annexed to this Agreement as Schedule V, with
respect to the Mortgage Loans that as of the date hereinbelow specified or, if
no such date is specified, as of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to Seller),
participation or pledge, and Seller had good and marketable title to, and was
the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association, savings bank,
commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act (any of the foregoing, including Seller, a
"Qualified Originator"); or
(B) if originated by a person which is not a Qualified Originator
(any such person, a "Non-Qualified Originator"), then:
1. such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using
application forms and related credit documents approved by
the Qualified Originator;
2. the Qualified Originator approved each application and
related credit documents before a commitment by the
Non-Qualified Originator was
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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
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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 December 4, 2003,
no waiver, consent, modification, assumption,
EXH. A-3
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 each of the CBA Mortgage Loans, the related
Mortgage encumbering the related Mortgaged Property also secures another
mortgage loan; and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the
related Mortgage, except those which are insured against by a lender's title
insurance policy (as described below). A UCC Financing Statement has been
filed and/or recorded (or sent for filing or recording) in all places
necessary to perfect a valid security interest in the personal property
necessary to operate the Mortgaged Property as currently operated; and such
security interest is a first priority security interest, subject to any prior
purchase money security interest in such personal property, any personal
property leases applicable to such personal property and any other security
interest in such personal property which do not, individually or in the
aggregate, materially interfere with the security intended to be provided for
such Mortgage Loan. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). In the
case of any Mortgage Loan secured by a hotel, the related loan documents
contain such provisions as are necessary and UCC Financing Statements have
been filed as necessary, in each case, to perfect a valid first priority
security interest in the related operating revenues with respect to such
Mortgaged Property. Notwithstanding the foregoing, no representation is made
as to the perfection of any security interest in rent, operating revenues or
other personal property to the extent that possession or control of such items
or actions other than the filing of UCC Financing Statements are required in
order to effect such perfection;
(xi) Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) Seller has no knowledge that the material representations and
warranties made by the related borrower in the related Mortgage Loan Documents
are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal amount
of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage)
after all advances of principal and is insured by an ALTA lender's title
insurance policy (except that if such policy is yet to be issued, such
insurance may be evidenced by a "marked up" pro forma policy or title
commitment in either case marked as binding and countersigned by the title
company or its authorized agent, either on its face or by an acknowledged
closing instruction or escrow letter), or its equivalent as adopted in the
applicable jurisdiction, insuring the named mortgagee and its successors and
assigns (as sole insured) as to such lien, subject only to (A) the lien of
current real property taxes, water charges,
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sewer rents and assessments not yet delinquent or accruing interest or
penalties, (B) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which, individually or
in the aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with the
borrower's ability to pay its obligations when they become due or the value of
the Mortgaged Property, (C) the exceptions (general and specific) and
exclusions set forth in such policy, none of which, individually or in the
aggregate, materially interferes with the current general use of the Mortgaged
Property or materially interferes with the security intended to be provided by
such Mortgage or with the related borrower's ability to pay its obligations
when they become due or the value of the Mortgaged Property, (D) the rights of
tenants, as tenants only, under leases, including subleases, pertaining to the
related Mortgaged Property, (E) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the mortgage
instrument for that other Mortgage Loan and (F) if the related Mortgaged
Property is a unit in a condominium, the related condominium declaration
(items (A), (B), (C), (D), (E) and (F) collectively, "Permitted
Encumbrances"), and except that, in the case of each of the CBA Mortgage
Loans, the related Mortgage encumbering the related Mortgaged Property also
secures another mortgage loan; and with respect to each Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate, materially
interfere with the security intended to be provided by the related Mortgage,
the current principal use of the related Mortgaged Property or the current
ability of the related Mortgaged Property to generate income sufficient to
service such Mortgage Loan; the premium for such policy was paid in full; such
policy (or if it is yet to be issued, the coverage to be afforded thereby) is
issued by a title insurance company licensed to issue policies in the state in
which the related Mortgaged Property is located (unless such state is Iowa)
and is assignable (with the related Mortgage Loan) to Depositor and the
Trustee without the consent of or any notification to the insurer, and is in
full force and effect upon the consummation of the transactions contemplated
by this Agreement; no claims have been made under such policy and Seller has
not undertaken any action or omitted to take any action, and has no knowledge
of any such act or omission, which would impair or diminish the coverage of
such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted). If any of the inspection or
engineering reports referred to above in this paragraph (xv) revealed any
immediate repair items, then one of the following is true: (A) the repairs
and/or maintenance necessary to correct such condition have been completed in
all material respects; (B) an escrow of funds is required or a letter of
credit was obtained in an amount reasonably estimated to be sufficient to
complete the repairs and/or maintenance necessary to correct such condition;
or (C) the reasonable estimation at the time of origination of the Mortgage
Loan of the cost to complete the repairs and/or maintenance necessary to
correct such condition represented no more than the greater of (1) $50,000 and
(2) 2% of the value of the related Mortgaged Property as reflected in an
appraisal conducted in connection with the origination of the subject Mortgage
Loan; as of the closing date for each Mortgage Loan and, to Seller's
knowledge, as of the date hereof, there is no
EXH. A-5
proceeding pending for the total or partial condemnation of such Mortgaged
Property that would have a material adverse effect on the use or value of the
Mortgaged Property;
(xvi) Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the related
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan, and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent
any noncompliance did not materially and adversely affect the value of the
related Mortgaged Property, the security provided by the Mortgage or the
related borrower's operations at the related Mortgaged Property, any and all
other requirements of any federal, state or local laws, including, without
limitation, truth-in-lending, real estate settlement procedures, equal credit
opportunity or disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such Mortgage Loan;
(xx) Neither Seller nor, to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and the origination, servicing and collection of each Mortgage Loan is in
all respects legal, proper and prudent in accordance with customary commercial
mortgage lending standards, and no other person has been granted or conveyed
the right to service the Mortgage Loans or receive any consideration in
connection therewith, except as provided in the Pooling and Servicing
Agreement or any permitted subservicing agreements and/or servicing rights
purchase agreements being executed and delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith, all such escrows and deposits are being
conveyed by Seller to Depositor and identified as such with appropriate
detail, and any and all requirements for the disbursement of any such escrows
have been complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the
requirements of the Pooling and Servicing Agreement,
EXH. A-6
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
EXH. A-7
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
EXH. A-8
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);
EXH. A-9
(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
EXH. A-10
(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
EXH. A-11
under the terms of such Mortgage by the related borrower, any right of the
related lessor to receive notice of, and to cure, such default granted to such
lessor under any agreement binding upon the lender would not be considered
commercially unreasonable in any material respect by prudent commercial
mortgage lenders, (D) the related lessor has agreed in a writing included in
the related Mortgage File that the related ground lease may not be amended or
modified without the prior written consent of the lender and that any such
action without such consent is not binding on the lender, its successors or
assigns, and (E) the related ground lease is in full force and effect, and
Seller has no actual knowledge that any default beyond applicable notice and
grace periods has occurred or that there is any existing condition which, but
for the passage of time or giving of notice, would result in a default under
the terms of such ground lease;
(xxxiii) Except in the case of each of the CBA Mortgage Loans with
respect to those Mortgage Loans that are cross-collateralized or
cross-defaulted, all other loans that are cross-collateralized or
cross-defaulted with such Mortgage Loans are being transferred to Depositor
hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair
market value of such real property, as evidenced by an appraisal satisfying
the requirements of FIRREA conducted within 12 months of the origination of
the Mortgage Loan, was at least equal to 80% of the principal amount of the
Mortgage Loan (1) at origination (or if the Mortgage Loan has been modified in
a manner that constituted a deemed exchange under Section 1001 of the Code at
a time when the Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such
modification) or (2) at the date hereof; provided that the fair market value
of the real property must first be reduced by (x) the amount of any lien on
the real property interest that is senior to the Mortgage Loan and (y) a
proportionate amount of any lien that is in parity with the Mortgage Loan
(unless such other lien secures a Mortgage Loan that is cross-collateralized
with such Mortgage Loan, in which event the computation described in (B) shall
be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
lender or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, in this Exhibit A or in the Exception
Report;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $5,000,000 require that the related borrower be a Single-Purpose
Entity (for this purpose, "Single-Purpose Entity" shall mean an entity, other
than an individual, having organizational documents which provide
substantially to the effect that it is formed or organized solely for the
purpose of owning and operating one or more Mortgaged Properties, is
prohibited from engaging in any business unrelated to such property and the
related Mortgage Loan, does not have any assets other than those related to
its interest in the related Mortgaged Property or its financing, or any
indebtedness other than as permitted under the related Mortgage Loan). To
Seller's actual knowledge,
EXH. A-12
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;
EXH. A-13
(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;
EXH. A-14
(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
EXH. A-15
(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., PNC Bank,
National Association, NCB, FSB, and KeyBank National Association pursuant to
those certain Mortgage Loan Purchase Agreements, each dated as of February 26,
2004, between Depositor and Column Financial, Inc., PNC Bank, National
Association, NCB, FSB, and KeyBank National Association, respectively, as of
the Cut-off Date (there being two such Mortgage Loan Purchase Agreements in
the case of Column Financial, Inc.);
(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.
EXH. A-16
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
, being duly sworn, deposes and says:
----------------------------
1. that he is an authorized signatory of KeyBank National
Association ("KeyBank");
2. that is the owner and holder of a mortgage loan
---------------
in the original principal amount of $ secured by a mortgage (the
--------------
"Mortgage") on the premises known as located in
-------------- --------------
;
--------------
3. that , after having conducted a diligent
---------------
investigation of its records and files, has been unable to locate the
following original note and believes that said original note has been lost,
misfiled, misplaced or destroyed due to a clerical error:
a note in the original sum of $ made by
--------------
, to , under date of
-------------- --------------- --------------
(the "Note");
4. that the Note is now owned and held by ;
---------------
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise
disposed of and that the original Note has been either lost, misfiled,
misplaced or destroyed;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except ; and
---------------
8. upon assignment of the Note by to Credit Suisse
---------------
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by Depositor to the trustee for the benefit of the holders of the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2004-C1 (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.
[SELLER]
By:
----------------------------
Name:
Title:
Sworn to before me this
-----
day of , 2004
----------
