Exhibit 4.2
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of June 1, 2004
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TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date.....................
Section 2. Closing Date Actions.............................................
Section 3. Conveyance of Mortgage Loans.....................................
Section 4. Depositor's Conditions to Closing................................
Section 5. Seller's Conditions to Closing...................................
Section 6. Representations and Warranties of Seller.........................
Section 7. Obligations of Seller............................................
Section 8. Crossed Mortgage Loans...........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance.......................................................
Section 10. Representations and Warranties of Depositor......................
Section 11. Survival of Certain Representations, Warranties and Covenants....
Section 12. Transaction Expenses.............................................
Section 13. Recording Costs..................................................
Section 14. Notices..........................................................
Section 15. Examination of Mortgage Files....................................
Section 16. Successors.......................................................
Section 17. Governing Law....................................................
Section 18. Severability.....................................................
Section 19. Further Assurances...............................................
Section 20. Counterparts.....................................................
Section 21. Treatment as Security Agreement..................................
Section 22. Recordation of Agreement.........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for Column Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and
Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of Lost Mortgage Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of June 1, 2004, is made by and between COLUMN FINANCIAL, INC., a Delaware
corporation ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each Mortgage Loan to Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
against receipt by Seller of a trust receipt, pursuant to an arrangement between
Seller and the Trustee.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other location as agreed upon between the parties hereto. On the Closing
Date, the following actions shall take place in sequential order on the terms
set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller by wire transfer in
immediately available funds to an account designated by Seller on or prior
to the Closing Date (or, by such other method as shall be mutually
acceptable to Depositor and Seller). The "Mortgage Loan Purchase Price"
paid by Depositor shall be equal to the amount that the Depositor and the
Seller have mutually agreed upon (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, 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 yield maintenance charges received on or with respect
to the Mortgage Loans after the Cut-off Date, other than any such payments of
interest or principal or yield maintenance charges that were due on or prior to
the Cut-off Date. The Mortgage File for each Mortgage Loan (other than the
Xxxxxxx Center Loan) shall consist of the following documents:
(a) each original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the form
of Exhibit B hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements or assignments showing a
complete chain of endorsement or assignment from the Mortgage Loan Originator
either in blank or to the Seller, and further endorsed by the Seller, on its
face or by allonge attached thereto, without recourse, 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-C2, without recourse, representation or warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to the Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form (except
for any missing recording information and, if applicable, completion of the name
of the assignee), from the 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-C2";
(d) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to the Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording thereon;
(e) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable form (except
for any missing recording information and, if applicable, completion of the name
of the assignee), from the 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-C2";
(f) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to the Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from the 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-C2," which assignment may be included as part of an omnibus assignment
covering other documents relating to the Mortgage Loan (provided that such
omnibus assignment is effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company) or interim binder that is marked as
binding and countersigned by the title company, insuring the priority of the
Mortgage as a first lien on the related Mortgaged Property, relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) certified or other copies of all UCC Financing Statements and
continuation statements which show the filing or recording thereof or copies
thereof in the form submitted for filing or recording sufficient to perfect (and
maintain the perfection of) the security interest held by the Mortgage Loan
Originator (and each assignee prior to the Trustee) in and to the personalty of
the Borrower at the Mortgaged Property that is described in the related Mortgage
or a separate security agreement, and original UCC Financing Statement
assignments in a form suitable for filing or recording, sufficient to transfer
such security interest to the Trustee;
(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including (as applicable) any Intercreditor
Agreement, mezzanine loan documents or preferred equity documents, together
with, if the Mortgage Loan is an A Loan, a copy of the Note for each related B
Loan;
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral control agreement
or lock-box control agreement, as applicable, and a copy of the UCC Financing
Statements, if any, submitted for filing with respect to the Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (together with UCC Financing Statement assignments in a form
suitable for filing or recording, sufficient to transfer such security interest
to the Trustee on behalf of the Certificateholders);
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Agreement (if separate from the related Mortgage
and Loan Agreement);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies thereof;
(r) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel, or a copy of
any of the foregoing;
(s) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties; and
(t) any additional documents required to be added to the Mortgage
File pursuant to Section 3.20(i) of the Pooling and Servicing Agreement.
With respect to the Xxxxxxx Center Loan, the following documents:
(a) the original executed Note for such Mortgage Loan, endorsed
(either on the face thereof or pursuant to a separate allonge) "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-C2, without recourse", or in blank, without recourse
and further showing a complete, unbroken chain of assignment and endorsement
from the originator (if such originator is other than the Seller); or,
alternatively, if the original executed Note has been lost, a lost note
affidavit and indemnity with a copy of such Note;
(b) a copy of the executed Xxxxxxx Center Intercreditor Agreement;
(c) a copy of the Xxxxxxx Center Servicing Agreement; and
(d) a copy of the documents comprising the "Mortgage File" under the
Xxxxxxx Center Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan (other than with respect to the Xxxxxxx Center Loan), the
Seller cannot deliver, or cause to be delivered, an original, counterpart or
certified copy, as applicable, of any of the documents and/or instruments
required to be delivered pursuant to clauses (b), (d), (h), (k) (other than
assignments of UCC Financing Statements to be recorded or filed in accordance
with the transfer contemplated by this Agreement), (l) and (n) (other than
assignments of UCC Financing Statements to be recorded or filed in accordance
with the transfer contemplated by this Agreement) above with evidence of
recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, the Seller: (i) shall
deliver, or cause to be delivered, to the Trustee a duplicate original or true
copy of such document certified by the applicable public recording or filing
office, the applicable title insurance company or the Seller to be a true and
complete duplicate original or copy of the original thereof submitted for
recording or filing; and (ii) shall deliver, or cause to be delivered, to the
Trustee 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 of the Closing Date, which period may be extended up to two times, in each
case for an additional period of 45 days (provided that the Seller, as certified
in writing to the Trustee prior to each such 45-day extension, is in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy). Compliance with this paragraph will satisfy the Seller's delivery
requirements under this Section 3 with respect to the subject document(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan (other than with respect to the Xxxxxxx Center Loan), the
Seller cannot deliver, or cause to be delivered, an original, counterpart or
certified copy, as applicable, of any of the documents and/or instruments
required to be delivered pursuant to clauses (b), (d), (h), (k) (other than
assignments of UCC Financing Statements to be recorded or filed other than in
accordance with the transfer contemplated by this Agreement), (l) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon, for any other reason, including without
limitation, that such non-delivered document has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document shall be deemed to have been included in the related
Mortgage File if a photocopy of such non-delivered document (with evidence of
recording or filing thereon and certified by the appropriate recording or filing
office to be a true and complete copy of the original thereof as filed or
recorded) is delivered to the Trustee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver any UCC Financing Statement assignment with the filing 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
office where such UCC Financing Statement has been delivered for filing, the
Seller shall so notify the Trustee and shall not be in breach of its obligations
with respect to such delivery, provided that the Seller promptly forwards such
UCC Financing Statement to the Trustee upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing.
The Seller may, at its sole cost and expense, but is not obligated
to, engage a third party contractor to prepare or complete in proper form for
filing or recording any and all assignments of Mortgage, assignments of
Assignments of Leases and assignments of UCC Financing Statements to the Trustee
to be delivered pursuant to clauses (c), (e), (k) and (n) above (collectively,
the "Assignments"), to submit the 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.
In the event the Seller engages a third party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of the Seller
pursuant to this Agreement remain binding on such Seller; and, if the Seller
does not engage a third party as contemplated by the immediately preceding
sentence, then the 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, the Seller
shall deliver the Servicer Files with respect to each of the Mortgage Loans
(other than with respect to the Xxxxxxx Center Loan) to the Master Servicer
under the Pooling and Servicing Agreement on behalf of the Trustee in trust for
the benefit of the Certificateholders. Each such Servicer File shall contain all
documents and records in the Seller's possession relating to such applicable
Mortgage Loans (other than with respect to the Xxxxxxx Center Loan) (including
reserve and escrow agreements, rent rolls, leases, environmental and engineering
reports, third-party underwriting reports, appraisals, surveys, legal opinions,
estoppels, financial statements, operating statements and any other information
provided by the respective Borrower from time to time, but excluding any
attorney/client privileged communications and documents prepared by the Seller
or any of its Affiliates solely for internal communication (other than the
underwriting information contained in the related underwriting memorandum or
asset summary report prepared by the Seller in connection with the preparation
of Exhibit A-1 to the Prospectus Supplement)) that are not required to be a part
of a Mortgage File in accordance with the definition thereof, together with
copies of all instruments and documents which are required to be a part of the
related Mortgage File in accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller shall cause to be prepared, executed and delivered to the
issuer of each such letter of credit such notices, assignments and
acknowledgements as are required under such letter of credit to assign, without
recourse, to, and vest in, the Trustee (whether by actual assignment or by
amendment of the letter of credit) the Seller's rights as the beneficiary
thereof and drawing party thereunder. The designated beneficiary under each
letter of credit referred to in the preceding sentence shall be the Trustee.
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.
The 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 (other
than with respect to the Xxxxxxx Center Loan) in the name of the Seller or any
other name, to be transferred to the Master Servicer (or a Sub-Servicer at the
direction of the Master Servicer) for deposit into Servicing Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the Master Servicer via wire transfer for deposit by the
Master Servicer into the Collection Account.
Upon sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller shall, under
generally accepted accounting principles ("GAAP"), report its transfer of the
Mortgage Loans to the Depositor, as provided herein, as a sale of the Mortgage
Loans to the Depositor in exchange for the consideration specified in Section 2
hereof. In connection with the foregoing, upon sale of Certificates representing
at least 10% of the fair value of all the Certificates to unaffiliated third
parties, Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). Regardless of
its treatment of the transfer of the Mortgage Loans to the Depositor under GAAP,
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 the 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 the Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of the Seller required to be performed
by it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; all
of the representations and warranties of Seller under this Agreement (subject to
the exceptions in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; and no event shall have occurred with
respect to the Seller or any of the Mortgage Loans and related Mortgage Files
which, with notice or the passage of time, would constitute a material default
under this Agreement; and Depositor shall have received certificates to the
foregoing effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Depositor and the Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the proviso to the first sentence
of Section 1 of this Agreement, which shall have been delivered to and
held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its representations
and warranties set forth in Section 6 (subject to the exceptions 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 the 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 the Depositor in order for the Depositor to
perform any of it obligations or satisfy any of the conditions on its part
to be performed or satisfied pursuant to any sale of Mortgage Loans by the
Depositor as contemplated herein.
(c) The Seller shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) The Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
the Seller, any Mortgage Loan Documents required to be recorded and any
intervening assignments with evidence of recording thereon that are required to
be included in the Mortgage Files. The Seller shall reasonably cooperate with
the Trustee and the Special Servicer in connection with any additional powers of
attorney 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:
(A) 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
(B) such other certificates of its officers or others, such opinions
of Depositor's counsel and such other documents required to evidence
fulfillment of the conditions set forth in this Agreement as Seller or its
counsel may reasonably request.
(c) The Depositor shall have performed or complied with all other
terms and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after Closing.
Section 6. Representations and Warranties of Seller. (a) Seller
represents and warrants to Depositor as of the date hereof, as follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
Seller has conducted and is conducting its business so as to comply in all
material respects with all applicable statutes and regulations of
regulatory bodies or agencies having jurisdiction over it, except where
the failure so to comply would not have a materially adverse effect on the
performance by Seller of this Agreement, and there is no charge,
investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans owned by it and to execute and
deliver this Agreement (and all agreements and documents executed and
delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all agreements
and documents executed and delivered by Seller in connection herewith).
Seller has duly authorized the execution, delivery and performance of this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith), and has duly executed and delivered this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each other
party thereto, constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, fraudulent transfer, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
organizational documents; (B) conflict with, result in a breach of, or
constitute a default or result in an acceleration under, any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound if compliance therewith is necessary (1) to ensure
the enforceability of this Agreement or (2) for Seller to perform its
duties and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C) conflict
with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of the Depositor to realize on the Mortgage Loans owned
by Seller.
(iv) Seller is solvent and the sale of Mortgage Loans (1) will not
cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of the
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 that Seller may not be
duly qualified to transact business as a foreign corporation or licensed
in one or more states if such qualification or licensing is not necessary
to ensure the enforceability of this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans owned by it constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits 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 the Depositor
hereunder except for (A) the reimbursement of expenses as described herein
or otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions in the Exception Report, are true and
correct in all material respects as of the date hereof with respect to the
Mortgage Loans identified on Schedule II.
(b) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of 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
(subject to exceptions disclosed at such time) (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 any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases but shall not inure to the benefit of any subsequent transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit A hereto and made by the
Seller with respect to the Mortgage Loans listed on Schedule II hereto, as of
the date hereof in Section 6(a)(xii) or as of the Closing Date pursuant to
Section 4(b)(iii), or with respect to any Replacement Mortgage Loan, as of the
date of substitution pursuant to Section 6(b) (in any such case, a "Breach"), or
receives notice that (A) any document required to be included in the Mortgage
File related to any Mortgage Loan is not in the Trustee's possession within the
time period required herein or (B) such document has not been properly executed
or is otherwise defective on its face (the circumstances in the foregoing
clauses (A) and (B), in each case, a "Defect" (including the "Defects" described
below) in the related Mortgage File), and if such Breach or Defect, as the case
may be, materially and adversely affects the value of any Mortgage Loan or the
interests of the Certificateholders therein (any Breach or Defect that
materially and adversely affects the value of any Mortgage Loan or the interests
of the Certificateholders therein, a "Material Breach" and a "Material Defect",
respectively), then the Seller shall, upon request of the Depositor, the
Trustee, the Master Servicer or the Special Servicer, not later than the earlier
of 90 days from the receipt by the Seller of such 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 Master Servicer for deposit into the Collection
Account any Substitution Shortfall Amount (as defined in the Pooling and
Servicing Agreement) in connection therewith; provided, however, that if (i)
such Material Breach or Material Defect is capable of being cured but not within
the Initial Resolution Period, (ii) such Material Breach or Material Defect does
not cause the related Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a) 3) of the Code), (iii) the Seller has commenced and
is diligently proceeding with the cure of such Material Breach or Material
Defect within the Initial Resolution Period and (iv) the Seller has delivered to
the Rating Agencies, the Master Servicer, the 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 the Seller shall have an
additional 90 days to cure such material Defect or material Breach. With respect
to any substitution of one or more Qualified Substitute Mortgage Loans for a
Mortgage Loan hereunder, (A) no such substitution may be made in any calendar
month after the Determination Date for such month; (B) scheduled payments of
principal and interest due with respect to the Qualified Substitute Mortgage
Loan(s) after the related date of substitution shall be part of the Trust Fund;
and (C) scheduled payments of principal and interest due with respect to such
Qualified Substitute Mortgage Loan(s) on or prior to the related date of
substitution shall not be part of the Trust Fund, and the Seller shall be
entitled to receive such payments promptly following receipt by the Master
Servicer or Special Servicer, as applicable, under the Pooling and Servicing
Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by clause (i) of the definition of Mortgage
File in Section 3; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; (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.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a) 3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of the discovery of such
Defect or Breach by any party to the Pooling and Servicing Agreement (so long as
Seller received prompt notice thereof pursuant to this Section 7) or Seller's
discovery of such Defect or Breach (which period shall not be subject to
extension).
If the Seller does not, as required by this Section 7, correct or
cure a Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Breach or Defect is not capable of being so corrected or cured with
such period, then the Seller shall purchase or substitute for the affected
Mortgage Loan as provided in this Section 7. If (i) any Mortgage Loan is
required to be repurchased or substituted for as provided above, (ii) such
Mortgage Loan is a Crossed 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 the Seller will be
required to repurchase or substitute for such other Crossed Mortgage Loan(s) in
the related Mortgage Group in accordance with the provisions of this Section 7
unless the Crossed Mortgage Loan Repurchase Criteria would be satisfied if
Seller were to repurchase or substitute for only the affected Crossed Mortgage
Loans as to which a Material Breach or Material Defect had occurred without
regard to this paragraph, and in the case of either such repurchase or
substitution, all of the other requirements set forth in the Pooling and
Servicing Agreement applicable to a repurchase or substitution, as the case may
be, would be so satisfied. In the event that the Crossed Mortgage Loan
Repurchase Criteria would be so satisfied, the Mortgage Loan Seller may elect
either to repurchase or substitute for only the affected Crossed Mortgage Loan
as to which the Material Defect or Material Breach exists or to repurchase or
substitute for the aggregated Crossed Mortgage Loans. The determination of the
Special Servicer as to whether the Crossed Mortgage Loan Repurchase Criteria
have been satisfied shall be conclusive and binding in the absence of manifest
error. In the event that one or more of such other Crossed Mortgage Loans
satisfy the Crossed Mortgage Loan Repurchase Criteria, the 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. The Seller
shall be responsible for the cost of (and, if so directed by the Special
Servicer, obtaining) any Appraisal required for the Special Servicer to
determine if the Crossed Mortgage Loan Repurchase Criteria have been satisfied,
so long as the scope and cost of such Appraisal has been approved by the Seller
(such approval not to be unreasonably withheld). For purposes of this paragraph,
a "Mortgage Group" is any group of Mortgage Loans identified as a Mortgage Group
on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will not
be obligated to repurchase or substitute for the entire Mortgage Loan if the
Mortgaged Loan may, pursuant to the terms of the related Mortgage Loan
Documents, be severed to allow for the repurchase of a portion of the Mortgage
Loan representing the affected Mortgaged Property and the Mortgage Loan
remaining after such severance satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) the Seller provides an opinion of counsel to
the effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) such Seller pays
(or causes to be paid) the applicable release price required under the Mortgage
Loan Documents and, to the extent not reimbursable out of the release price
pursuant to the related Mortgage Loan Documents, any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property 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 the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds (and,
in the case of a substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans), shall promptly release the related Mortgage File and
Servicer File or cause them to be released, to Seller and shall execute and
deliver such instruments of transfer or assignment as shall be necessary to vest
in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
listed on Schedule II hereto constitute the sole remedies available to the
Depositor and its successors and assigns against Seller respecting any Breach or
Defect affecting such Mortgage Loan.
If the Seller has an obligation to repurchase the Xxxxxxx Center
Companion Loan from the Series 2004-C1 Trust by reason of a "Material Document
Defect" or a "Material Breach" (as such terms are defined in the Series 2004-C1
Pooling and Servicing Agreement), then the Seller shall repurchase the Xxxxxxx
Center Loan at the Purchase Price contemporaneously with any repurchase of the
Xxxxxxx Center Companion Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the 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, the
Seller and the Depositor (on behalf of its successors and assigns) agree to
modify upon such repurchase or substitution, the related Mortgage Loan Documents
in a manner such that such affected Crossed Mortgage Loan repurchased or
substituted by the 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 the
Seller shall have furnished to the Trustee, at the Seller's expense, an opinion
of counsel that such modification shall not cause an Adverse REMIC Event;
provided, further, that if such opinion cannot be furnished, the Seller and the
Depositor hereby agree that such repurchase or substitution of only the affected
Crossed Mortgage Loans, notwithstanding anything to the contrary herein, shall
not be permitted (in which case, the Seller will be obligated to purchase all
Crossed Mortgage Loans). Any reserve or other cash collateral or letters of
credit securing the affected 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 (unless otherwise modified in accordance with the Pooling
and Servicing Agreement).
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (liv)(F) set forth on Exhibit A hereto. The Seller
shall pay all reasonable costs and expenses associated with a defeasance of a
Mortgage Loan to the extent such costs and expenses have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (liv)(F) set forth on Exhibit A hereto.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require the consent of, notice to or any filing with any
person, entity or governmental body, which has not been obtained or made by
Depositor, except where, in any of the instances contemplated by clause (i)
above or this clause (ii), the failure to do so will not have a material and
adverse effect on the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 9 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. Whether or not this Agreement is
terminated, both the Depositor and the Seller agree to pay the transaction
expenses incurred in connection with the transactions herein contemplated as set
forth in the Closing Statement.
Section 13. Recording Costs. 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 shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed by
similar mailed writing, if to the Depositor, addressed to the Depositor at 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx,
with a copy to Xxxxx Xxxxxx, Esq., Legal & Compliance Department, Telecopy No.:
(000) 000-0000, or such other address as may be designated by the Depositor to
the Seller in writing, or, if to the Seller, addressed to the Seller at 0000
Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx
Xxxxxx, Telecopy No.: (000) 000-0000, or such other address as may be designated
by the Seller to the Depositor in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors,
permitted assigns and legal representatives, and nothing expressed in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; it being
understood that (a) the indemnities of Seller contained in that certain Mortgage
Loan Seller Indemnification Agreement dated May 27, 2004 among Seller,
Depositor, Credit Suisse First Boston LLC (on behalf of itself and the other
Underwriters) and the Initial Purchaser, 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 1934 Act, 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
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. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER AND THE DEPOSITOR EACH HEREBY IRREVOCABLY (I) SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK
CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other parties
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and 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 (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; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may execute and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an opinion of
counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as of the date first
above written.
COLUMN FINANCIAL, INC.,
as Seller
By: _____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
as Depositor
By: _____________________________
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of June 1, 2004, between Column Financial, Inc. (the "Seller") and Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor"). Capitalized terms used
herein without definition have the meanings given them in or by reference in the
Agreement or, if not defined in the Agreement, in the Pooling and Servicing
Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Borrower" means the borrower under a Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated May 27, 2004, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C2,
issued in multiple classes.
"Closing Date" means June 11, 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 June 2004.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of the Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"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.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the proviso in Section 1 of the
Agreement).
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Offering Circular" means the confidential offering circular dated
May 27, 2004, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of June 1,
2004, among the Master Servicer, the Special Servicer, the Depositor 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 May 14, 2004, that is a
part of the Depositor's registration statement on Form S-3 (File No. 333-97955).
"Prospectus Supplement" means the Prospectus Supplement, dated May
27, 2004, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class B, Class C, Class D and Class E Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 thereof.
"Underwriters" means Credit Suisse First Boston LLC, KeyBanc Capital
Markets, a Division of McDonald Investments Inc., X.X. Xxxxxx Securities Inc.
and WaMu Capital Corp.
"Underwriting Agreement" means the Underwriting Agreement, dated May
27, 2004, between the Depositor and Credit Suisse First Boston LLC, on behalf of
itself and the other Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[see attached]
# Crossed Property Name Address City
--- ------- ------------------------------------------- ------------------------------------------------- ----------------
1 Xxxxxxx Center 0000 Xxxxxxx Xxxxxxxxx Xxx Xxxxxxx
2 000 Xxxx Xxxxxx Xxxxx 000 Xxxx Xxxxxx Xxxxx Xxx Xxxx
3 La Habra Marketplace 1331-1941 West Imperial Xxxxxxx Xx Xxxxx
0 Xxxxxx Xxxxx Xxxx 0000 Xxxxxxx 00 Xxxxxxxxx Xxxxxxx
0 Xxxxxxx Xxxxx Xxxxx 000 & Xxxxxxx Street Farmingdale
6 Energy Centre 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxx
8 30 South Meridian 00 Xxxxx Xxxxxxxx Xxxxxxxxxxxx
0 Xxxxxx xx Xxxxxx Xxxxxxx 0000 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxxxx
00x The Brittany 0000 Xxxxxxxx Xxxxx Xxxxxxxxx
00x Xxx Xxxx 0000 Xxxxxxx Xxxxx Xxxxxxxxx
00x Xxx Xxx Xxxx 0000 Xxxxx Xxxxx Xxxxxx Drive Corpus Christi
11 Maui Coast Hotel 0000 Xxxxx Xxxxx Xxxx Kihei
13 Centre at Golden Ring II 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx
14 A Xxxxxx Xxxx Mobile Home Park 000 Xxxxx Xxx Xxxxxx, Xxxxxxxxx Xxxxxxxxxxx
15 A Village Park Mobile Home Park 00000 0xx Xxxxxx Xxxxxxxxx Albuquerque
16 A Aztec Village 0000 Xxxxx Xxxx Xxxxxxxxxxx
17 A Longview Mobile Home Park 00000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx
00 Xxxxxxxxx Xxxx Xxxxxxxxxx 00000 Xxxxx Xxx Drive Houston
20 Northwoods Plaza Shopping Center 0000-0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx
22 Park 270 II 0000 Xxxx 000 Xxxxx Xxxxxxxx Heights
00 X Xxxxxx Xxxx Xxxxxxxxxx 00000 Xxxxx Xxxxxxx Avenue Tampa
00 X Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxx Xxxxx Avenue Tampa
25 Mallard Creek Apartments 00000 XX Xxxxxxx 00 Xxxxxxx
27 Corner Lakes Plaza 16825-16889 East Colonial Drive Orlando
28 Arbors of Central Park Apartments 2701 Parkview lane Bedford
30a Xxxxxxx Portfolio - Guilford Station 0000-0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx
30b Xxxxxxx Portfolio - Shops on the Curve 0000 Xxxxxxx Xxxx Xxxxxxxxxx
30c Xxxxxxx Portfolio - Shops at Kirkwood 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx
00x Xxxxxxx Xxxxxxxxx - Xxxxxxx Xxxx Shops 0000 Xxxxxxx Xxxx Xxxxxxxxxx
00 XxxxxXxxxx Xxxxxx 0000 Xxxxxx Xxxxxxxxx Xxxxxxx
00 Xxxx Club Apartments 1001 Xxxxxx Xxxxx Road Euless
36 Squire Hill II Apartments 0000 Xxx Xxxxx Xxxx Xxxxxxxxxxxxxxx
40 Comfort Suites Chesapeake 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx
41 Branchester Lakes Apartments 0000 Xxxx Xxxx Xxxxxx Xxxxxx
44 Shadow Creek Apartments 2807 Xxxxxx XxXxxx Drive Lufkin
46 Xxxxx Court Apartments 000-000 Xxxxx Xxxxx & 000-000 Xxxx Xxxxxx Xxxxxxxxx
47 Chablis Villas 0000 Xxxxxxxx Xxxxx Reynoldsburg
48 Evergreen Office Tower 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx
49 The Chelsea Apartments 163 Treasure Way San Antonio
51 Village of Northampton Apartments 0000 Xxxxxxxxxxx Xxxx Akron
54 Great Petaluma Mill 0 Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx
56 Indian Xxxxx Recreational Vehicle Park 00-000 Xxxxxxxxx Xxxxxx Xxxxx
00 Xxxxxxxxx Xxxxx 00000-00000 Xxxxxxxxxxx Xxxx Xxxxxxxxxx
00 Xxxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 XX 0000 Xxxx Xxxxxxx
00 Xx. Xxxxxx Xxxxxxx Xxxx 736 South 000 Xxxx Xx. Xxxxxx
00 Xxxx Xxxx Xxxxxxx 00 Xxxxx Xxxx Xxxxxxx Xxxxxx
62 Xxxxxxx Crossing Shopping Center 5010 & 0000 Xxxxx Xxxxxxxxx Pensacola
63 Braves Village 0000 Xxxx Xxxx Xxxx Socastee
64 Farmbrook Medical Building I 00000 Xxxxxxxxx Xxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxxxx 00000 Xxxxxxxx Xxxx Xxxxxxxx
67 Regency Apartments 0000 Xxxx Xxxxxxx Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxxxxxx 0000 - 0000 Xxxxxxxx Bethesda
69 Mountain View Acres Mobile Home Park 0000 Xxxxxxxxx Chico
00 Xxxx Xxxxxx Xxxxxxx 0000-X Xxxxxxxxxxxxx Suwannee Road Xxxxxxx
00 Xxxxxx Xxxxx Apartments 000-000 00xx Xxxxxx Xxxxxxxxx Xxxxxx
73 Xxxxxxxx Square Apartments 35240 Xxxx Xxxxxxxx Xxxxxx Xxxxx
00 000 Xxxxx Xxxxx 300, 302, 312 and 000 Xxxxx Xxxxx Xxxxxx Xxx Arbor
75 Mirage Villa Apartments 9895 Florida Boulevard Baton Rouge
77 Adam's Mini Storage 7910 & 0000 Xxxxxx Xxxxxxx Beaumont
79 Holden & Manor Retail Xxxxxx 000 Xxxxx Xxxx Xxxxxx Xxxxxx
00 Xxxxxx Business Rentals 0000 Xxxxxxx Xxxxxx Concord
00 Xxxx Xxxxx Xxxxxxx 171 - 199 Relco Drive Manchester
82 Huntington Professional Park 000 Xxxxx Xxxxxxxxxxx Xxxxx Friendswood
00 Xxxxx Xxxx Xxxxxxxx Xxxxxx 225 - 000 Xxxx Xxxxx Xxxxx Xxxxxxxx Cocoa Beach
00 Xxxxxx Xxxx Xxxxx 0000 Xxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxx
00 Xxxxxxxxx Xxxx 000 XxXxxxx Xxxxx Mankato
00 Xxxxxx Xxxxxx Xxxxx & 0000 Xxxxx Apartments 1371-1397 Sunset Boulevard and 0000 Xxxxx Xxxxxxx Xxx Xxxxxxx
87 Xxxxx Mobile Home Community 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxxx
88 Apple Valley Mobile Home Park 00000 Xxxxxxx 00 Xxxxx Xxxxxx
89 The Xxxxxxx Apartments 1402-1404 Fannidella Drive Carrollton
90 Sunrise Shopping Center 00000 X. Xxxxxxx Xxxx Surprise
91 1665 Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
92 Crofton Apartments 00000 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
00 1627 Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
94 Mount West Apartments 0000 Xxxx 00xx Xxxxxx and 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxxx
95 Colonial Point Apartments 0000 Xxxxxxxx Xxxxx Xxxx Xxxxxxxxxx Xxxxx
96 Blue Mountain Village 1 Blue Mountain Village Saylorsburg
97 InSite Chicago Ashland 4800 - 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx
00 Xxxxxxx Xxxxx xx Xxxx, Xxxxx 0000 Xxxx 0xx Xxxxxx Katy
99 43 New Brunswick Avenue 00 Xxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx
100 Village Mobile Home Park 3956 Agua Fria Santa Fe
101 Wal-mart Supercenter outparcel-Memphis 0000 Xxxxxxxxxx Xxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
103 Waters Edge Towns Apartments 000-000 Xxxx Xxxx Xxxxx Xxxxxxxxxxxx
000 Schuulyer & Xxxxxxxx 00-00 Xxxxxxxx Xxxxxx and 00 Xxxxxxxx Xxxx Xxxxxxxxxx
000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx
000 Xxxxxxx Xxxx Apartments 000 Xxxxxxxx Xxxxxx Xxxxxxx Xxxx
107 Xxxxxxxxx Apartments 00-00 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx
108 0000 X Xxxxxx 0000 X Xxxxxx Xxxxxxxxx Xxxxxxxxxx
000 Xxxxx Xxxx Xxx 6 & 00 Xxxxx Xxxx Xxxxxx Xxxxxxxxxx
Mortgage Net Mortgage Rem.
Zip Rate at Rate at Original Cut-off Term to Maturity
# State Code Cut-Off (1) Cut-Off (1) Balance Balance (1) Maturity (2) (3) Date (2) (3)
--- ----- ----- ----------- ------------ ----------- --- ----------- --- ---------------- ------------
0 XX 00000 5.090% 5.0576% $84,500,000 (8) $84,500,000 (8) 116 2/11/2014
2 XX 00000 6.330% 6.2975% $83,000,000 $82,454,224 175 1/11/2019
3 XX 00000 5.280% 5.2475% $62,550,000 $62,550,000 119 5/11/2014
4 NC 28602 4.728% 4.6950% $62,000,000 $61,780,421 117 3/5/2014
5 XX 00000 6.200% 6.1675% $55,000,000 $54,752,854 115 1/11/2014
6 LA 70163 5.690% 5.6575% $54,000,000 $53,679,644 114 12/11/2013
8 IN 46204 6.090% 6.0575% $23,500,000 $23,391,847 115 1/11/2014
9 FL 34134 6.010% 5.9775% $23,000,000 $22,892,304 115 1/11/2014
00x XX 00000 6.020% 5.9875% $9,600,000 $9,537,212 113 11/11/2013
00x XX 00000 6.020% 5.9875% $7,992,590 $7,940,315 113 11/11/2013
10c XX 00000 6.020% 5.9875% $5,000,000 $4,967,298 113 11/11/2013
11 HI 96753 6.670% 6.6375% $22,000,000 $21,838,326 114 12/11/2013
00 XX 00000 5.830% 5.7975% $19,500,000 $19,405,106 115 1/11/2014
00 XX 00000 5.500% 5.4675% $8,030,000 $8,030,000 113 11/11/2013
00 XX 00000 5.500% 5.4675% $3,400,000 $3,400,000 113 11/11/2013
00 XX 00000 5.500% 5.4675% $3,270,000 $3,270,000 113 11/11/2013
00 XX 00000 5.500% 5.4675% $1,000,000 $1,000,000 113 11/11/2013
19 XX 00000 5.800% 5.7675% $13,812,500 $13,717,785 113 11/11/2013
00 XX 00000 5.600% 5.5675% $13,680,000 $13,610,116 115 1/11/2014
00 XX 00000 5.170% 5.1375% $13,000,000 $13,000,000 55 1/11/2009
00 XX 00000 5.510% 5.4775% $6,875,000 $6,845,791 80 2/11/2011
00 XX 00000 5.510% 5.4775% $6,100,000 $6,074,084 80 2/11/2011
25 XX 00000 5.810% 5.7775% $11,000,000 $10,936,425 54 12/11/2008
00 XX 00000 5.800% 5.7675% $8,550,000 $8,550,000 114 12/11/2013
28 XX 00000 6.020% 5.9875% $8,500,000 $8,453,097 114 12/11/2013
30a NC 27409 6.140% 6.1075% $2,780,800 $2,770,407 116 2/11/2014
00x XX 00000 6.140% 6.1075% $2,196,200 $2,187,992 116 2/11/2014
30c NC 27408 6.140% 6.1075% $1,722,200 $1,715,763 116 2/11/2014
30d NC 27407 6.140% 6.1075% $1,200,800 $1,196,312 116 2/11/2014
31 LA 70123 6.350% 6.3175% $7,900,000 $7,857,838 56 2/11/2009
33 XX 00000 6.140% 6.1075% $7,800,000 $7,758,097 114 12/11/2013
36 VA 22901 5.840% 5.8075% $7,500,000 $7,463,580 115 1/11/2014
40 VA 23320 6.720% 6.6875% $6,600,000 $6,536,203 115 1/11/2014
41 VA 23875 5.780% 5.7475% $6,550,000 $6,511,895 114 12/11/2013
44 TX 75901 5.930% 5.8975% $6,000,000 $5,940,812 77 11/11/2028
00 XX 00000 5.300% 5.2675% $5,750,000 $5,724,528 116 2/11/2014
47 OH 43068 5.700% 5.6675% $5,680,000 $5,640,214 113 11/11/2013
00 XX 00000 5.960% 5.9275% $5,600,000 $5,573,495 115 1/11/2014
49 XX 00000 5.040% 5.0075% $5,600,000 $5,567,896 79 1/11/2011
51 OH 44313 5.610% 5.5775% $5,300,000 $5,268,009 114 12/11/2013
00 XX 00000 6.120% 6.0875% $4,800,000 $4,754,139 113 11/11/2013
00 XX 00000 5.290% 5.2575% $4,300,000 $4,267,185 53 11/11/2008
57 OH 45246 6.310% 6.2475% $4,100,000 $4,078,804 114 12/11/2013
59 XX 00000 6.510% 6.4775% $3,700,000 $3,657,341 111 9/11/2013
60 UT 84790 6.070% 6.0375% $3,700,000 $3,649,639 176 2/11/2019
61 XX 00000 6.050% 6.0175% $3,600,000 $3,573,555 112 10/11/2013
00 XX 00000 5.930% 5.8975% $3,550,000 $3,533,089 115 1/11/2014
00 XX 00000 5.720% 5.6875% $3,500,000 $3,479,311 116 2/11/2014
64 XX 00000 6.260% 6.2275% $3,200,000 $3,183,268 114 12/11/2013
65 XX 00000 6.000% 5.9675% $3,050,000 $3,033,095 114 12/11/2013
00 XX 00000 5.550% 5.5175% $3,000,000 $2,984,513 55 1/11/2009
00 XX 00000 5.980% 5.9475% $3,000,000 $2,980,208 113 11/11/2013
00 XX 00000 5.750% 5.7175% $2,960,000 $2,945,349 115 1/11/2014
00 XX 00000 6.120% 6.0875% $2,787,500 $2,774,754 115 1/11/2014
72 OH 44709 5.370% 5.3375% $2,800,000 $2,774,277 114 12/11/2013
73 XX 00000 6.250% 6.2175% $2,450,000 $2,439,110 175 1/11/2019
74 XX 00000 6.500% 6.4375% $2,400,000 $2,381,823 114 12/11/2013
75 LA 70815 6.170% 6.1375% $2,400,000 $2,380,744 114 12/11/2013
77 XX 00000 7.020% 6.9875% $2,300,000 $2,284,131 114 12/11/2013
79 XX 00000 6.330% 6.2975% $2,100,000 $2,086,191 115 1/11/2014
00 XX 00000 6.290% 6.2575% $2,090,000 $2,070,600 113 11/11/2013
81 TN 37355 5.890% 5.8575% $2,060,000 $2,050,103 115 1/11/2014
82 XX 00000 6.030% 5.9975% $1,925,000 $1,914,401 114 12/11/2013
00 XX 00000 6.490% 6.4575% $1,850,000 $1,835,964 114 12/11/2013
00 XX 00000 6.000% 5.9675% $1,725,000 $1,713,006 115 1/11/2014
85 XX 00000 5.980% 5.9475% $1,600,000 $1,591,092 114 12/11/2013
00 XX 00000 6.260% 6.2275% $1,600,000 $1,589,353 115 1/11/2014
87 OH 45068 6.060% 6.0275% $1,550,000 $1,544,111 116 2/11/2014
00 XX 00000 6.040% 6.0075% $1,550,000 $1,541,485 114 12/11/2013
89 TX 75006 5.880% 5.8475% $1,525,000 $1,509,830 53 11/11/2008
90 AZ 85374 5.950% 5.9175% $1,515,000 $1,506,370 116 2/11/2014
00 XX 00000 5.940% 5.9075% $1,390,000 $1,378,397 54 12/11/2008
92 OR 97233 6.040% 6.0075% $1,350,000 $1,341,310 114 12/11/2013
00 XX 00000 5.940% 5.9075% $1,325,000 $1,313,940 54 12/11/2008
00 XX 00000 6.090% 6.0575% $1,280,000 $1,271,234 115 1/11/2014
95 VA 23062 5.900% 5.8675% $1,250,000 $1,242,917 114 12/11/2013
00 XX 00000 5.990% 5.9575% $1,200,000 $1,195,374 116 2/11/2014
00 XX 00000 6.160% 6.1275% $1,160,000 $1,150,677 114 12/11/2013
98 XX 00000 6.390% 6.3575% $1,050,000 $1,041,892 114 12/11/2013
99 XX 00000 6.340% 6.3075% $1,000,000 $989,850 115 1/11/2014
000 XX 00000 6.580% 6.5475% $975,000 $961,527 113 11/11/2013
000 XX 00000 6.210% 6.1775% $962,000 $957,687 115 1/11/2014
000 XX 00000 6.200% 6.1675% $815,000 $810,680 114 12/11/2013
000 XX 00000 6.460% 6.4275% $800,000 $792,787 113 11/11/2013
104 XX 00000 6.160% 6.1275% $775,000 $767,645 113 11/11/2013
000 XX 00000 6.200% 6.1675% $705,000 $701,263 114 12/11/2013
000 XX 00000 6.700% 6.6675% $700,000 $693,216 235 1/11/2024
000 XX 00000 6.280% 6.2475% $685,000 $680,457 115 1/11/2014
000 XX 00000 6.100% 6.0675% $525,000 $521,625 113 11/11/2013
109 XX 00000 6.080% 6.0475% $500,000 $496,570 115 1/11/2014
Orig Rem. Sq. Ft./
Amort. Amort. Rooms/
# ARD (4) Term Term Monthly Payment (5) Pads
--- ---------- ------ --- ------ ------------------- ----------------------------------------------
1 N/A 360 (9) 360 $455,726 855,015
2 N/A 300 295 $551,637 341,125
3 N/A 336 336 $356,846 375,627
4 N/A 360 357 $322,581 293,670
5 N/A 360 355 $336,858 447,154
6 N/A 360 354 $313,074 762,131
8 N/A 360 355 $142,257 298,341
9 N/A 360 355 $138,045 307,658
10a N/A 360 353 $57,680 000
00x X/X 000 000 $48,022 454
10c N/A 360 353 $30,042 000
00 X/X 000 000 $150,891 000
00 X/X 000 000 $114,790 117,927
14 N/A 324 324 $47,629 000
00 X/X 000 000 $20,167 000
00 X/X 000 000 $19,396 000
00 X/X 000 000 $5,931 00
00 X/X 000 000 $81,045 000
00 X/X 000 000 $78,534 189,030
00 X/X 000 000 $73,297 151,277
23 N/A 360 356 $39,079 000
00 X/X 000 000 $34,673 000
00 X/X 000 000 $64,613 000
00 X/X 000 000 $50,167 76,737
00 X/X 000 000 $51,071 000
00x X/X 000 000 $16,923 33,370
30b N/A 360 356 $13,366 20,491
00x X/X 000 000 $10,481 14,959
30d N/A 360 356 $7,308 10,400
00 X/X 000 000 $52,603 000
00 X/X 000 000 $47,469 000
00 X/X 000 000 $44,198 000
00 X/X 000 000 $50,066 000
00 X/X 000 000 $38,349 120
44 11/11/2010 300 293 $38,402 000
00 X/X 000 000 $31,930 000
00 X/X 000 000 $32,967 000
00 X/X 000 000 $33,431 119,061
49 N/A 360 355 $30,199 00
00 X/X 000 000 $30,460 00
00 X/X 000 000 $31,280 45,597
00 X/X 000 000 $23,851 000
00 X/X 000 000 $25,405 48,300
00 X/X 000 000 $25,006 49,708
00 X/X 000 000 $31,363 39,929
00 X/X 000 000 $21,700 000
00 X/X 000 000 $21,125 19,611
00 X/X 000 000 $21,955 59,762
00 X/X 000 000 $19,724 33,955
00 X/X 000 000 $18,286 16,800
67 N/A 360 355 $17,128 00
00 X/X 000 000 $17,948 14,674
00 X/X 000 000 $17,274 000
00 X/X 000 000 $16,928 23,906
00 X/X 000 000 $16,978 000
00 X/X 000 000 $15,085 00
00 X/X 000 000 $16,205 13,912
00 X/X 000 000 $15,714 000
00 X/X 000 000 $16,285 68,007
00 X/X 000 000 $13,957 11,270
00 X/X 000 000 $13,839 49,100
00 X/X 000 000 $12,205 20,875
00 X/X 000 000 $11,579 19,116
00 X/X 000 000 $12,480 28,786
00 X/X 000 000 $11,114 16,974
00 X/X 000 000 $9,572 000
00 X/X 000 000 $10,565 22,755 SF (Retail) and 13 units (Multifamily)
87 N/A 360 356 $9,353 00
00 X/X 000 000 $9,333 000
00 X/X 000 000 $9,714 00
00 X/X 000 000 $9,715 8,765
00 X/X 000 000 $8,905 00
00 X/X 000 000 $8,338 00
00 X/X 000 000 $8,488 00
00 X/X 000 000 $8,318 00
00 X/X 000 000 $7,414 00
00 X/X 000 000 $7,187 00
00 X/X 000 000 $7,588 7,192
00 X/X 000 000 $7,018 46,575
00 X/X 000 000 $7,362 35,000
000 X/X 000 000 $7,315 00
000 X/X 000 000 $5,898 6,000
000 X/X 000 000 $4,992 00
000 X/X 000 000 $5,382 00
000 X/X 000 000 $5,069 00
000 X/X 000 000 $4,318 00
000 X/X 000 000 $5,302 00
000 X/X 000 000 $4,531 00
000 X/X 000 000 $3,181 0
000 X/X 000 000 $3,246 10
Master
Servicing Fee Earthquake Environmental Fee/ Letter
# Rate Due Date (6) ARD Loan (4) Defeasance (7) Insurance Insurance Leasehold of Credit
--- ------------- ------------ ------------ -------------- ---------- ------------- ------------- ---------
1 0.0300% 11 No Yes Yes No Leasehold N/A
2 0.0300% 11 No Yes N/A No Fee N/A
3 0.0300% 11 No Yes N/A No Fee N/A
4 0.0300% 5 No Yes N/A No Fee N/A
5 0.0300% 11 No Yes N/A No Fee N/A
6 0.0300% 11 No Yes N/A No Fee N/A
8 0.0300% 11 No Yes N/A No Fee N/A
9 0.0300% 11 No Yes N/A No Fee N/A
10a 0.0300% 11 No Yes N/A No Fee N/A
10b 0.0300% 11 No Yes N/A No Fee N/A
10c 0.0300% 11 No Yes N/A No Fee N/A
11 0.0300% 11 No Yes N/A No Fee N/A
13 0.0300% 11 No Yes N/A No Fee N/A
14 0.0300% 11 No Yes N/A No Fee N/A
15 0.0300% 11 No Yes N/A No Fee N/A
16 0.0300% 11 No Yes N/A No Fee N/A
17 0.0300% 11 No Yes N/A No Fee N/A
19 0.0300% 11 No Yes N/A No Fee N/A
20 0.0300% 11 No Yes N/A No Fee N/A
22 0.0300% 11 No Yes N/A No Fee N/A
23 0.0300% 11 No Yes N/A No Fee N/A
24 0.0300% 11 No Yes N/A No Fee N/A
25 0.0300% 11 No Yes N/A No Fee N/A
27 0.0300% 11 No Yes N/A No Fee Yes
28 0.0300% 11 No Yes N/A No Fee N/A
30a 0.0300% 11 No Yes N/A No Fee N/A
30b 0.0300% 11 No Yes N/A No Fee N/A
30c 0.0300% 11 No Yes N/A No Fee N/A
30d 0.0300% 11 No Yes N/A No Fee N/A
31 0.0300% 11 No Yes N/A No Fee N/A
33 0.0300% 11 No Yes N/A No Fee N/A
36 0.0300% 11 No Yes N/A No Fee N/A
40 0.0300% 11 No Yes N/A No Fee N/A
41 0.0300% 11 No Yes N/A No Fee N/A
44 0.0300% 11 Yes Yes N/A No Fee N/A
46 0.0300% 11 No Yes N/A No Fee N/A
47 0.0300% 11 No Yes N/A No Fee N/A
48 0.0300% 11 No Yes N/A No Fee N/A
49 0.0300% 11 No Yes N/A No Fee N/A
51 0.0300% 11 No Yes N/A No Fee N/A
54 0.0300% 11 No Yes N/A No Fee N/A
56 0.0300% 11 No Yes N/A No Fee N/A
57 0.0600% 11 No Yes N/A No Fee N/A
59 0.0300% 11 No Yes N/A No Fee N/A
60 0.0300% 11 No Yes N/A No Fee N/A
61 0.0300% 11 No Yes N/A No Fee N/A
62 0.0300% 11 No Yes N/A No Fee N/A
63 0.0300% 11 No Yes N/A No Fee N/A
64 0.0300% 11 No Yes N/A No Fee N/A
65 0.0300% 11 No Yes N/A No Fee N/A
67 0.0300% 11 No Yes N/A No Fee N/A
68 0.0300% 11 No Yes N/A No Fee N/A
69 0.0300% 11 No Yes N/A No Fee N/A
71 0.0300% 11 No Yes N/A No Fee N/A
72 0.0300% 11 No Yes N/A No Fee N/A
73 0.0300% 11 No Yes N/A No Fee N/A
74 0.0600% 11 No Yes N/A No Fee/Leasehold N/A
75 0.0300% 11 No Yes N/A Yes Fee N/A
77 0.0300% 11 No Yes N/A Yes Fee N/A
79 0.0300% 11 No Yes N/A Yes Fee N/A
80 0.0300% 11 No Yes N/A Yes Fee N/A
81 0.0300% 11 No Yes N/A No Fee N/A
82 0.0300% 11 No Yes N/A No Fee N/A
83 0.0300% 11 No Yes N/A Yes Fee N/A
84 0.0300% 11 No Yes N/A No Fee N/A
85 0.0300% 11 No Yes N/A Yes Fee N/A
86 0.0300% 11 No Yes N/A Yes Fee N/A
87 0.0300% 11 No Yes N/A Yes Fee N/A
88 0.0300% 11 No Yes N/A Yes Fee N/A
89 0.0300% 11 No Yes N/A Yes Fee N/A
90 0.0300% 11 No Yes N/A Yes Fee N/A
91 0.0300% 11 No Yes N/A Yes Fee N/A
92 0.0300% 11 No Yes N/A Yes Fee N/A
93 0.0300% 11 No Yes N/A Yes Fee N/A
94 0.0300% 11 No Yes N/A Yes Fee N/A
95 0.0300% 11 No Yes N/A No Fee N/A
96 0.0300% 11 No Yes N/A Yes Fee N/A
97 0.0300% 11 No Yes N/A Yes Fee N/A
98 0.0300% 11 No Yes N/A Yes Fee N/A
99 0.0300% 11 No Yes N/A Yes Fee N/A
100 0.0300% 11 No Yes N/A Yes Fee N/A
101 0.0300% 11 No Yes N/A Yes Fee N/A
102 0.0300% 11 No Yes N/A Yes Fee N/A
103 0.0300% 11 No Yes N/A Yes Fee N/A
104 0.0300% 11 No Yes N/A Yes Fee N/A
105 0.0300% 11 No Yes N/A Yes Fee N/A
106 0.0300% 11 No Yes N/A Yes Fee N/A
107 0.0300% 11 No Yes N/A Yes Fee N/A
108 0.0300% 11 No Yes N/A Yes Fee N/A
109 0.0300% 11 No Yes N/A Yes Fee N/A
# Loan Group No.
--- --------------
1 1
2 1
3 1
4 1
5 1
6 1
8 1
9 1
10a 2
10b 2
10c 2
11 1
13 1
14 2
15 2
16 2
17 2
19 2
20 1
22 1
23 2
24 2
25 2
27 1
28 2
30a 1
30b 1
30c 1
30d 1
31 1
33 2
36 2
40 1
41 2
44 2
46 2
47 2
48 1
49 2
51 2
54 1
56 1
57 1
59 1
60 1
61 2
62 1
63 1
64 1
65 1
67 2
68 1
69 2
71 1
72 2
73 2
74 1
75 2
77 1
79 1
80 1
81 1
82 1
83 1
84 1
85 1
86 2
87 1
88 2
89 2
90 1
91 2
92 2
93 2
94 2
95 2
96 1
97 1
98 1
99 1
100 2
101 1
102 2
103 2
104 2
105 2
106 2
107 2
108 2
109 2
A The Underlying Mortgage Loans secured by Xxxxxx Xxxx Mobile Home Park,
Village Park Mobile Home Park, Aztec Village and Longview Mobile Home
Park, are cross-collateralized and cross-defaulted, respectively.
B The Underlying Mortgage Loans secured by Shadow Oaks Apartments and
Xxxxxxx Place Apartments are cross-collateralized and cross-defaulted,
respectively.
(1) Assumes a Cut-off Date in June 2004.
(2) At maturity with respect to Balloon Loans or at the ARD in the case of ARD
Loans. There can be no assurance that the value of any particular
Mortgaged Property will not have declined from the original appraisal
value.
(3) In the case of the ARD Loans, the anticipated repayment date is assumed to
be the maturity date for the purposes of the indicated column.
(4) Anticipated Repayment Date.
(5) For mortgage loans with an initial interest-only period, monthly payment
was calculated using the average principal and interest payment that will
be due with respect to the mortgage loan during the 12-month period
following the initial interest-only period.
(6) For loans with a Due Date of the 11th, the Interest Accrual Period will be
from the 12th of the prior calendar month through and including the Due
Date of the current month. For loans with a Due Date of the 5th, the
Interest Accrual Period will be from t
(7) "Yes" means that defeasance is permitted notwithstanding the Lockout
Period.
(8) The Xxxxxxx Center Mortgage Loan is secured, on a pari passu basis, with
the Xxxxxxx Center Pari Passu Companion Loans. The Xxxxxxx Center Pari
Passu Companion Loans have a total Cut-off Date Principal Balance of
$222,000,000 and are not included in the trust fund. Together, the Xxxxxxx
Center Mortgage Loan and the Xxxxxxx Center Pari Passu Companion Loans
represent the Xxxxxxx Center Senior Loan, which has a Cut-off Date
Principal Balance of $306,500,000. In addition, the Xxxxxxx Center
mortgaged real property also secures, on a subordinate basis, two junior
outside-the-trust mortgage loans, the Xxxxxxx Center B-Note Companion Loan
and the Xxxxxxx Center C-Note Companion Loan. The Xxxxxxx Center B-Note
Companion Loan and the Xxxxxxx Center C-Note Companion Loan have Cut-off
Date Principal Balances of $20,000,000 and $21,000,000, respectively.
(9) Represents the original amortization term for the Xxxxxxx Center Total
Loan, with an original principal balance of $347,500,000, a monthly
payment of $1,925,047 and a current weighted average mortgage interest
rate of 5.2785%.
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
1. Xxxxxx Xxxx Mobile Home Park
Village Park Mobile Home Park
Aztec Village
Longview Mobile Home Park
2. Shadow Oaks Apartments
Xxxxxxx Place Apartments
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth
in Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Exceptions to paragraph (x)
Maui Coast Hotel:
A UCC Financing Statement has been filed and/or recorded (or sent for filing and
recording) with respect to a limited amount of equipment used in the operation
of the hotel. However, because the related borrower leases such equipment rather
than outright ownership of such equipment, the mortgage and related security
documents do not provide the lender a security interest or lien on the equipment
itself (but, rather, only on the related borrower's leasehold interest therein).
Such equipment leases are subject to the following limitations: (i) a maximum
aggregate obligation (together with other trade and operational debt) of 4% of
the outstanding balance of the loan, and (ii) in any case, such equipment leases
shall not, in the aggregate, constitute an obligation in excess of $250,000.
Exception to paragraph (xiii)
Xxxxxxx Center:
The same mortgage secures additional "A Notes" which are pari passu with the "A
Notes" in the mortgage pool as well as one "B Notes" and one "C Note".
Chablis Villas and Xxxxxxxxx Park Apartments:
With respect to each Mortgaged Property, the related mortgage secures both the
"A Loan" which is the Mortgage Loan and a "B Note" consistent with the
CBA-Mezzanine Capital Finance, LLC program.
Exceptions to paragraph (xxviii) Xxxxxxx Center:
A controlling interest in the related borrower may be directly or indirectly
transferred or sold without the lender's consent provided that certain
stipulated conditions including qualifications of, or specified parameters for,
the proposed transferee are satisfied or the permitted qualified transferee is
identified in the mortgage documents, and, in some instances, certain rating
agency and legal opinion requirements.
Exception to paragraph (xxxi)(E)
Xxxxxxx Center:
Notice must be given to lessor prior to the assignment of the ground lease to
lender. Lessee may assign without consent (i) to certain entities controlled by
E. Xxxxxxx Xxxx or Xxxxxxx X. Xxxxxx or (ii) to any other person or entity
provided it has a net worth of not less than $15,000,000 and either substantial
commercial property management experience or agrees to contract for qualified
management property services for at least five years. All other assignments are
subject to lessor's consent, not to be unreasonably withheld (it being agreed
that lessor shall not be deemed to have unreasonably withheld its consent if the
net worth of the assignee is less than two times the sum of the rent for the
last full calendar year plus the real estate taxes for such calendar year).
Notwithstanding the foregoing, in the event of a foreclosure by the leasehold
mortgagee, the leasehold mortgagee shall have the right to assign the ground
lease without lessor's consent.
Exception to paragraph (xxxi)(K)
000 Xxxxx Xxxxx:
Upon total loss, the related borrower must restore the premises.
Exception to paragraph (xxxi) (J) and (K) Xxxxxxx Center:
If the ground lease is terminated the lessor and lessee divide such proceeds
based upon the termination date of the ground lease.
Exception to paragraph (xxxi)(L)
Xxxxxxx Center:
While the ground lease provides for such new ground lease upon termination of
the ground lease, it does not expressly state that this includes rejection of
the ground lease in a bankruptcy proceeding.
Exception to paragraph (xxxiii):
Xxxxxxx Center:
The same mortgage secures additional "A Notes" which are pari passu with the "A
Notes" in the mortgage pool as well as one "B Notes" and one "C Note". Certain
of the "A Notes" and the "B Note" and "C Note" is not being transferred to the
Depositor.
Chablis Villas and Xxxxxxxxx Park Apartments:
The "B Note" for each of the related Mortgage Loans (or "A Loans") is not being
transferred to the Depositor.
Exception to paragraph (xl)
Evergreen Office Tower:
The Mortgaged Property is not taxed as one separate tax parcel. An application
has been filed and if the petition is not finalized and approved by the time for
making payment of 2004 taxes, the lender shall escrow an amount sufficient to
cover the entire tax parcel of which the Mortgaged Property is currently just a
part.
Exception to paragraph (xliv)
St. Xxxxxx Medical Park:
$2,000,000 outstanding personal injury claim. The related borrower's insurance
company at the time of the incident is handling the claim and has agreed to
indemnify the borrower up its policy limit of $1,000,000. Accordingly, the
lender has required that Xxxxx X. Xxx Land and Investments, LC (an entity with
assets) indemnify the lender from any losses sustained as a result of the
lawsuit and maintain a net worth of at least $5,000,000 until the lawsuit is
dismissed.
Exception to paragraph (lv) 000 Xxxx Xxxxxx Xxxxx:
The borrower is not liable to the lender for any losses incurred by the lender
due to the misapplication or misappropriation of rents. Also, the borrower is
only liable to the lender for any losses incurred by the lender due to physical
waste to the Mortgaged Property in violation of the loan documents arising from
the intentional misconduct of the borrower or any guarantor.
Exception to paragraph (lv) Xxxxxxx Center:
The borrower (a) is only liable to the lender with respect to the misapplication
or misappropriation of rents following an event of default (as defined in the
loan documents) if the rents are not applied by the related borrower to monthly
payment, operating expenses or reserve funds, provided the borrower has received
written notice, and (b) the borrower is not liable for any willful act of
material waste.
Exception to paragraph (lvi)
Generally, in the case of all mortgage loans, the related loan documents may not
provide that 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.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) RESERVED.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(v) As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan Documents,
the Borrower, lessee and/or operator was in possession of all licenses, permits,
and authorizations then required for use of the Mortgaged Property which were
valid and in full force and effect as of the origination date;
(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 valid offset, defense, counterclaim, or right of
rescission 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) 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 the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed by or for the benefit of the related
Borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and (B) each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and 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;
any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid
and enforceable lien on property described therein, 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);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee and/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 (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and assigns as
to such lien, subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property and (C) the exceptions (general and
specific) and exclusions set forth in such policy, none of which, individually
or in the aggregate, materially interferes with the current general use of the
Mortgaged Property or materially interferes with the security intended to be
provided by such Mortgage or with the related Borrower's ability to pay its
obligations when they become due or the value of the Mortgaged Property (items
(A), (B) and (C) collectively, "Permitted Encumbrances"); the premium for such
policy was paid in full; such policy (or if it is yet to be issued, the coverage
to be afforded thereby) is issued by a title insurance company licensed to issue
policies in the state in which the related Mortgaged Property is located (unless
such state is Iowa) and is assignable (with the related Mortgage Loan) to the
Depositor and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have been made under such
policy and the Seller has not undertaken any action or omitted to take any
action, and has no knowledge of any such act or omission, which would impair or
diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related mortgage file;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted) or reserves have been established
to cover the costs to remediate such damage and, as of the closing date for each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, there is no
proceeding pending for the total or partial condemnation of such Mortgaged
Property that would have a material adverse effect on the use or value of the
Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan, and no other person has been granted or conveyed the right to
service the Mortgage Loans or receive any consideration in connection therewith,
except as provided in the Pooling and Servicing Agreement or any permitted
subservicing agreements;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith and all such escrows and deposits are being
conveyed by the Seller to the Depositor and identified as such with appropriate
detail;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been received
by the Seller; such insurance names the lender under the Mortgage Loan and its
successors and assigns as a named or additional insured; each related Mortgage
Loan obligates the related Borrower to maintain all such insurance and, at such
Borrower's failure to do so, authorizes the lender to maintain such insurance at
the Borrower's cost and expense and to seek reimbursement therefor from such
Borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan; and, to the Seller's
knowledge, there is no (A) non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or (B) event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does 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) materially
and adversely affects the use or value of the Mortgage Loan or the related
Mortgaged Property; provided, however, that this representation and warranty
does not address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by any
other representation or warranty made by the Seller in any of the other
paragraphs of this Exhibit A; and provided, further that a breach by the
Borrower of any representation or warranty contained in any Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or event
of acceleration for purposes of this representation and warranty if the subject
matter of such representation or warranty contained in any Mortgage Loan
Document is also covered by any other representation or warranty made by the
Seller in this Exhibit A-1;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or (B)
as the enforcement of the Mortgage may be limited by bankruptcy, insolvency,
reorganization, moratorium, redemption or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). To the
Seller's knowledge, no Borrower is a debtor in a state or federal bankruptcy or
insolvency proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related Borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report and, with respect to certain Mortgage Loans, a Phase II
environmental report, was conducted by a reputable environmental consulting firm
in connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material existence
of hazardous materials or, if any material non-compliance or material existence
of hazardous materials was indicated in any such report, then at least one of
the following statements is true: (A) funds reasonably estimated to be
sufficient to cover the cost to cure any material non-compliance with applicable
environmental laws or material existence of hazardous materials have been
escrowed by the related Borrower and held by the related mortgagee; (B) an
operations or 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 with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related mortgage file. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impairment environmental insurance policy
was obtained with respect to each such Mortgage Loan and is a part of the
related mortgage file. Each of such environmental insurance policies is in full
force and effect, the premiums for such policies have been paid in full and the
Trustee is named as an insured under each of such policies. To the best of the
Seller's knowledge, in reliance on such environmental reports and except as set
forth in such environmental reports, each Mortgaged Property is in material
compliance with all applicable federal, state and local environmental laws, and
to the best of the Seller's knowledge, no notice of violation of such laws has
been issued by any governmental agency or authority, except, in all cases, as
indicated in such environmental reports or other documents previously provided
to the Rating Agencies; and the Seller has not taken any action which would
cause the Mortgaged Property to not be in compliance with all federal, state and
local environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders), each Mortgage Loan with a Stated Principal Balance of over
$20,000,000 also contains the provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the consent of
the holder of the Mortgage, (and the Mortgage requires the mortgagor to pay all
fees and expenses associated with obtaining such consent) a majority interest in
the related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which the Seller has obtained title insurance against
losses arising therefrom or that do not materially and adversely affect the use
or value of such Mortgaged Property. No improvements on adjoining parcels
encroach onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage or the related Borrower's operations at the
Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the mortgage loan schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
(xxxi) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, 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, the 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 the Seller's best 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 will be enforceable, by the lender) that extends not less
than 20 years beyond the stated maturity of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the 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) The ground lease is assignable to the lender under the ground
lease and its assigns without the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full force and
effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any
existing condition which, but for the passage of time or giving of notice,
would result in a default under the terms of the ground lease;
(G) The ground lease or an ancillary agreement between the lessor
and the lessee, which is part of the Mortgage File, requires the lessor to
give notice of any default by the lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default, before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by an institutional
investor. 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, 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 any institutional
investor, 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,
except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related mortgage file that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized or cross-defaulted with such Mortgage Loans are being
transferred to the 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 (1) and (2) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, this Exhibit A or in the Exception Report to
this Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of $4,000,000
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);
(xxxviii) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified therein 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;
(xlii) To the knowledge of the Seller, 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;
(xliii) RESERVED.
(xliv) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of the Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any Borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such Borrower's ability to perform under the
related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the related
Borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to the Seller's knowledge, been
received from any person other than, or on behalf of, the related Borrower, for,
or on account of, payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Exception Report to this
Agreement or the Prospectus Supplement with respect to the Crossed Mortgage
Loans and Mortgage Loans secured by multiple Mortgaged 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, (C) releases of unimproved out-parcels or (D) releases of
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;
(xlix) Except as provided in paragraphs (xxxi)(J) and (K) above, 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 that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it) having
the right to hold and disburse such proceeds as the repair or restoration
progresses (except in any case where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (B) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(l) Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the related Mortgaged Property and
each Form UCC-2 or UCC-3 assignment, if any, of such financing statement to the
Seller was, and each Form UCC-3 assignment, if any, of such financing statement
in blank which the Trustee or its designee is authorized to complete (but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is, in suitable form for filing in the
filing office in which such financing statement was filed;
(li) To the Seller's knowledge, (A) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property comply with applicable
zoning laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the value of the related Mortgaged
Property. With respect to any Mortgage Loan with a Stated Principal Balance as
of the Closing Date of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) 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 Trust Mortgage 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 Trust
Mortgage Loan (as defined in the Pooling and Servicing Agreement), the Borrower
must obtain Rating Agency 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 Certificate rated by
such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder shall be liable to the Seller for any losses
incurred by the Seller due to (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;
(lvi) 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 more 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 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;
(lvii) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same Borrower and to Borrowers
that are affiliates, accounted for more than 5.0% of the aggregate of the Stated
Principal Balances of all of the Mortgage Loans and all the mortgage loans sold
to the Depositor by KeyBank National Association ("KeyBank") pursuant to that
certain Mortgage Loan Purchase Agreement dated as of June 1, 2004 between the
Depositor and KeyBank; and
(lviii) The Seller has delivered to the Trustee or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
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 Column Financial, Inc.
("Column");
2. that Column is the owner and holder of a mortgage loan in the
original principal amount of $__________________ secured by a mortgage (the
"Mortgage") on the premises known as ___________________________ located in
_________________ ;
3. (a) that Column, 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 Column Financial, Inc., under date of ______________ (the
"Note");
4. that the Note is now owned and held by Column;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except Column; and
7. upon assignment of the Note by Column to Credit Suisse First
Boston Mortgage Securities Corp. (the "Depositor") and subsequent assignment by
the Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2004-C2 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by Column to the Trustee) Column
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 Column's failure to deliver said original
Note to the Trustee.
COLUMN FINANCIAL, INC.
By: _____________________________
Name:
Title:
Sworn to before me
this ________ day of [ ], 2004
