[FOR EXECUTION]
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated
and effective as of March 1, 2003, between PNC Bank, National Association, a
national banking association ("PNC Bank"), as seller (in such capacity, together
with its successors and permitted assigns hereunder, the "Seller"), and Credit
Suisse First Boston Mortgage Securities Corp., a Delaware corporation ("CSFB
Mortgage Securities"), as purchaser (in such capacity, together with its
successors and permitted assigns hereunder, the "Purchaser").
RECITALS
PNC Bank desires to sell, assign, transfer, set over and otherwise
convey to CSFB Mortgage Securities, without recourse, and CSFB Mortgage
Securities desires to purchase, subject to the terms and conditions set forth
herein, the multifamily and commercial mortgage loans (collectively, the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule"), as such schedule may be amended from time to time
pursuant to the terms hereof.
CSFB Mortgage Securities intends to create a trust (the "Trust"),
the primary assets of which will be a segregated pool of multifamily and
commercial mortgage loans that includes the Mortgage Loans. Beneficial ownership
of the assets of the Trust (such assets collectively, the "Trust Fund") will be
evidenced by the Certificates (as defined below). Certain classes of the
Certificates will be rated by Xxxxx'x Investors Service, Inc. and Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
(together, the "Rating Agencies"). The Trust will be created and the
Certificates will be issued pursuant to a pooling and servicing agreement to be
dated as of March 1, 2003 (the "Pooling and Servicing Agreement"), among CSFB
Mortgage Securities, as depositor (in such capacity, the "Depositor"), Midland
Loan Services, Inc., as general master servicer (in such capacity, the "General
Master Servicer") and as general special servicer (in such capacity, the
"General Special Servicer"), NCB, FSB, as co-op master servicer, National
Consumer Cooperative Bank, as co-op special servicer, and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (in such capacity, together with any successor as
trustee, the "Trustee"), relating to the issuance of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1 (the "Certificates"). Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned to them in the Pooling and
Servicing Agreement as in full force and effect on the Closing Date (as defined
in Section 1 hereof). It is anticipated that CSFB Mortgage Securities will
transfer the Mortgage Loans to the Trust contemporaneously with its purchase of
the Mortgage Loans hereunder.
CSFB Mortgage Securities intends to sell certain classes of the
Certificates (collectively, the "Publicly Offered Certificates") to Credit
Suisse First Boston LLC ("CSFB LLC") and the other underwriters that are parties
to the Underwriting Agreement (as defined below) (collectively in such capacity,
the "Underwriters"), pursuant to an underwriting agreement dated as of February
27, 2003 (the "Underwriting Agreement"), between CSFB Mortgage Securities, CSFB
LLC, PNC Capital Markets, Inc., Greenwich Capital Markets, Inc. and X.X. Xxxxxx
Securities Inc. CSFB Mortgage Securities intends to sell certain classes of the
remaining Certificates (the "Privately Offered Certificates") to CSFB LLC,
pursuant to a certificate purchase agreement dated as of February 27, 2003 (the
"Certificate Purchase Agreement"), between CSFB Mortgage Securities and CSFB
LLC. The Publicly Offered Certificates are more fully described in a prospectus
dated December 2, 2002 (the "Base Prospectus"), and the supplement to the Base
Prospectus dated February 27, 2003 (the "Prospectus Supplement"; and, together
with the Base Prospectus, the "Prospectus"), as each may be amended or
supplemented at any time hereafter. The Privately Offered Certificates are more
fully described in a confidential offering circular dated February 27, 2003 (the
"Confidential Offering Circular"), as it may be amended or supplemented at any
time hereafter.
PNC Bank will indemnify CSFB Mortgage Securities, CSFB LLC, the
other Underwriters and certain related parties with respect to the disclosure
regarding the Mortgage Loans contained in the Prospectus, the Confidential
Offering Circular and certain other disclosure documents and offering materials
relating to the Certificates, pursuant to an indemnification agreement dated
February 27, 2003 (the "Indemnification Agreement"), among PNC Bank, CSFB
Mortgage Securities, CSFB LLC, both as an Underwriter and as initial purchaser
of the Privately Offered Certificates, and the other Underwriters.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, assign,
transfer, set over and otherwise convey to the Purchaser, without recourse, and
the Purchaser agrees to purchase from the Seller, subject to the Seller's
transfer of the related servicing rights as provided in the Servicing Rights
Purchase Agreement dated as of March 13, 2003 (the "Servicing Rights Purchase
Agreement") between the Seller and Midland Loan Services, Inc. and subject to
the terms and conditions set forth herein, the Mortgage Loans. The purchase and
sale of the Mortgage Loans shall take place on March 13, 2003 or such other date
as shall be mutually acceptable to the parties hereto (the "Closing Date"). As
of the close of business on the respective Due Dates for the Mortgage Loans in
March 2003 (individually and collectively, the "Cut-off Date"), the Mortgage
Loans will have an aggregate principal balance, after application of all
payments of principal due on the Mortgage Loans on or before the Cut-off Date,
whether or not received, as set forth in the Mortgage Loan Schedule attached
hereto as Exhibit A. The purchase price for the Mortgage Loans shall be
$301,878,729.51, which includes accrued interest on the Mortgage Loans at their
respective Net Mortgage Rates from and including the Cut-off Date to but not
including the Closing Date, and the Purchaser shall pay such purchase price to
the Seller on the Closing Date by wire transfer in immediately available funds
to an account designated by the Seller or by such other method as shall be
mutually acceptable to the parties hereto.
SECTION 2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and the other conditions to the
Seller's obligations set forth herein, the Seller does hereby sell, assign,
transfer, set over and otherwise convey to the Purchaser, subject to the
Seller's transfer of the related servicing rights as provided in the Servicing
Rights Purchase Agreement, without recourse, all of the right, title and
interest of the Seller in and to the Mortgage Loans, including all interest and
principal received on or with respect to the Mortgage Loans after the Cut-off
Date (other than scheduled payments of interest and principal due on or before
the Cut-off Date), together with all of the right, title and interest of the
Seller in and to the proceeds of any related title, hazard or other insurance
policies and any escrow, reserve or other comparable accounts related to the
Mortgage Loans.
(b) The Purchaser shall be entitled to receive all scheduled
payments of principal and interest due on the Mortgage Loans after the Cut-off
Date, and all other recoveries of principal and interest collected thereon after
the Cut-off Date (other than scheduled payments of principal and interest due on
the Mortgage Loans on or before the Cut-off Date and collected after the Cut-off
Date, which shall belong to the Seller).
(c) On or before the Closing Date, the Seller shall, at its expense,
subject to Section 18, deliver to and deposit with, or cause to be delivered to
and deposited with, the Purchaser or its designee the Mortgage File and any
Additional Collateral (other than reserve funds and escrow payments) with
respect to each Mortgage Loan; provided, however, that in connection with the
delivery of the Mortgage File, the original of each Letter of Credit (and any
related amendment or assignment), if any, shall be delivered to the General
Master Servicer and a copy thereof shall be delivered to the Trustee or its
designated Custodian. 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
acknowledgments as are required under such Letter of Credit to assign, without
recourse, to 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. Unless the Purchaser notifies the Seller in writing to the
contrary, the designated recipient of the items described in the second
preceding sentence (subject to the proviso to that sentence), and the designated
beneficiary under each Letter of Credit referred to in the preceding sentence,
shall be the Trustee.
If the Seller cannot deliver on the Closing Date any original or
certified recorded or filed document or original policy of title insurance which
is to be delivered as part of the related Mortgage File for any Mortgage Loan
solely because the Seller is delayed in making such delivery by reason of the
fact that such original or certified recorded or filed document has not been
returned by the appropriate recording or filing office or such original policy
of title insurance has not yet been issued, then the Seller shall deliver such
documents to the Purchaser or its designee, promptly upon the Seller's receipt
thereof.
In addition, the Seller shall, at its expense, deliver to and
deposit with, or cause to be delivered to and deposited with, the Purchaser or
its designee, within three (3) Business Days after the Closing Date, the
following items (except to the extent that any of the following items are to be
retained by a subservicer that will continue to act on behalf of the Purchaser
or its designee): (i) originals or copies of all financial statements,
appraisals, environmental/ engineering reports, leases, rent rolls, third-party
underwriting reports, insurance policies, legal opinions, tenant estoppels and
any other documents that the Purchaser or its servicing agent reasonably deems
necessary to service the subject Mortgage Loan in the possession or under the
control of the Seller that relate to the Mortgage Loans, copies of all documents
required to be delivered by the Seller to the Purchaser or its designee as a
part of a Mortgage File and, to the extent they are not required to be a part of
a Mortgage File for any Mortgage Loan, originals or copies of all documents,
certificates and opinions in the possession or under the control of the Seller
that were delivered by or on behalf of the related Borrowers in connection with
the origination of the Mortgage Loans (provided that the Seller shall not be
required to deliver any attorney-client privileged communication or any other
documents or materials prepared by the Seller or its Affiliates solely for
internal credit analysis and/or other internal uses); and (ii) all unapplied
reserve funds and escrow payments in the possession or under the control of the
Seller that relate to the Mortgage Loans. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipient of the items
described in clauses (i) and (ii) of the preceding sentence shall be the General
Master Servicer.
Notwithstanding the foregoing, if the Seller is unable to deliver
any Letter of Credit constituting Additional Collateral for any Mortgage Loan,
then the Seller may, in lieu thereof, deliver on behalf of the related Borrower,
to be used for the same purposes as such missing Letter of Credit either: (i) a
substitute letter of credit substantially comparable to, but in all cases in the
same amount and with the same draw conditions and renewal rights as, that Letter
of Credit and issued by an obligor that meets any criteria in the related
Mortgage Loan Documents applicable to the issuer of that Letter of Credit; or
(ii) a cash reserve in an amount equal to the amount of that Letter of Credit.
For purposes of the delivery requirements of this Section 2(c), any such
substitute letter of credit shall be deemed to be Additional Collateral of the
type covered by the first paragraph of this Section 2(c) and any such cash
reserve shall be deemed to be reserve funds of the type covered by the third
paragraph of this Section 2(c).
In connection with the foregoing paragraphs of this Section 2(c),
the Seller shall receive copies, or otherwise be the beneficiary, of all
certifications relating to the Mortgage Loans made and/or delivered by the
Trustee pursuant to Section 2.02(a) and Section 2.02(b) of the Pooling and
Servicing Agreement.
(d) The Seller shall be responsible for all reasonable fees and
out-of-pocket costs and expenses associated with recording and/or filing any and
all assignments and other instruments of transfer with respect to the Mortgage
Loans that are required to be recorded or filed, as the case may be, under the
Pooling and Servicing Agreement; provided that subject to the next paragraph,
the Seller shall not be responsible for actually recording or filing any such
assignments or other instruments of transfer. If the Seller receives written
notice that any such assignment or other instrument of transfer is lost or
returned unrecorded or unfiled, as the case may be, because of a defect therein,
the Seller shall prepare or cause the preparation of a substitute therefor or
cure such defect, as the case may be; provided that the cost of such preparation
shall be borne by the Purchaser if the loss or return is caused by the
Purchaser's negligence. The Seller shall provide the Purchaser or its designee
with a power of attorney to enable it or them to record any loan documents that
the Purchaser has been unable to record. Unless the Purchaser notifies the
Seller in writing to the contrary, the designated recipients of the power of
attorney referred to in the preceding sentence shall be the Trustee.
Notwithstanding the immediately preceding paragraph, the Seller may,
at its sole cost and expense, engage a third party contractor to prepare or
complete in proper form for filing and recording any and all of the assignments
and other instruments described in the immediately preceding paragraph,
including assignments of UCC Financing Statements, with respect to the Mortgage
Loans, to submit such assignments and instruments for filing and recording, as
the case may be, in the applicable public filing and recording offices and to
deliver such assignments and instruments to the Trustee or its designee as such
assignments and other instruments (or certified copies thereof) are received
from the applicable filing and recording offices with evidence of such filing
and recording indicated thereon. However, in the event the Seller engages a
third party contractor as contemplated in the immediately preceding sentence,
the rights, duties and obligation of the Seller pursuant to this Agreement
remain binding on the Seller.
(e) Upon the sale of Certificates representing at least 10% of the
total principal balance of all the Certificates to unaffiliated third parties,
the Seller shall, under GAAP, report its transfer of the Mortgage Loans to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser
in exchange for the consideration specified in Section 1 hereof. In connection
with the foregoing, upon sale of Certificates representing at least 10% of the
total principal balance of all the Certificates to unaffiliated third parties,
the Seller shall cause all of its financial and accounting records to reflect
such transfer as a sale (as opposed to a secured loan).
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership 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 the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Mortgage Loan Schedule, as it may be amended from time to
time, shall conform to the requirements set forth in the Pooling and Servicing
Agreement. The Seller shall, within 15 days of its discovery or receipt of
notice of any error on the Mortgage Loan Schedule, amend such Mortgage Loan
Schedule and deliver to the Purchaser or the Trustee, as the case may be, an
amended Mortgage Loan Schedule.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review. The Seller shall reasonably cooperate with any examination of the
Mortgage Files for, and any other documents and records relating to, the
Mortgage Loans that may be undertaken by or on behalf of the Purchaser. The fact
that the Purchaser has conducted or has failed to conduct any partial or
complete examination of any of the Mortgage Files for, and/or any of such other
documents and records relating to, the Mortgage Loans, shall not affect the
Purchaser's right to pursue any remedy available in equity or at law for a
breach of the Seller's representations and warranties made pursuant to Section 4
(subject, however, to Section 5(e)).
SECTION 4. Representations, Warranties and Covenants of the Seller
and the Purchaser.
(a) The Seller hereby makes, as of the date hereof, to and for the
benefit of the Purchaser, each of the representations and warranties set forth
in Exhibit B-1. The Purchaser hereby makes, as of the date hereof, to and for
the benefit of the Seller, each of the representations and warranties set forth
in Exhibit B-2.
(b) The Seller hereby makes, as of the date hereof (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, with respect to each Mortgage Loan,
each of the representations and warranties set forth in Exhibit C, subject,
however, to the exceptions set forth in Schedule C-1 hereto and Section 18.
(c) The Seller hereby represents and warrants, as of the date
hereof, to and for the benefit of CSFB Mortgage Securities only, that the Seller
has not dealt with any broker, investment banker, agent or other person (other
than the CSFB Mortgage Securities, CSFB LLC and the other Underwriters) who may
be entitled to any commission or compensation in connection with the sale to the
Purchaser of the Mortgage Loans.
(d) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Purchaser, with respect
to any replacement mortgage loan (a "Replacement Mortgage Loan") that is
substituted for a Defective Mortgage Loan (as defined in Section 5(a) hereof),
pursuant to Section 5(a) of this Agreement, each of the representations and
warranties set forth in Exhibit C (with references in such exhibits to "Closing
Date" being deemed to be references to the "date of substitution", references in
such exhibits 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" and references in such exhibits to "March 2003" and "February
2003 " being deemed to be references to the "month of substitution" and the
"month preceding the month of substitution", respectively). 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.
(e) It is understood and agreed that the representations and
warranties set forth in or made pursuant to this Section 4 shall survive
delivery of the respective Mortgage Files to the Purchaser or its designee and
shall inure to the benefit of the Purchaser for so long as any of the Mortgage
Loans remain outstanding, notwithstanding any restrictive or qualified
endorsement or assignment.
SECTION 5. Notice of Breach; Cure, Repurchase and Substitution.
(a) The Trustee or its designee shall provide the Seller with
written notice of any Material Breach or Material Document Defect with respect
to any Mortgage Loan. Within 90 days (or in the case of a Material Document
Defect that consists of the failure to deliver a Specially Designated Mortgage
Loan Document with respect to any Mortgage Loan, 15 days) after the earlier of
discovery or receipt of written notice by the Seller that there has been a
Material Breach or Material Document Defect with respect to any Mortgage Loan
(such 90-day (or, if applicable, 15-day) period, the "Initial Resolution
Period"), the Seller shall, subject to Section 5(b), Section 5(c) and Section
5(d) below, (i) correct or cure such Material Breach or Material Document
Defect, as the case may be, in all material respects or (ii) repurchase the
Mortgage Loan affected by such Material Breach or Material Document Defect, as
the case may be (such Mortgage Loan, a "Defective Mortgage Loan"), at the
applicable Purchase Price, with payment to be made in accordance with the
reasonable directions of the General Master Servicer; provided that if the
Seller shall have delivered to the Trustee a certification executed on behalf of
the Seller by an officer thereof stating (i) that such Material Breach or
Material Document Defect, as the case may be, does not relate to whether the
Defective Mortgage Loan is or, as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution), was a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code (a
"Qualified Mortgage"), (ii) that such Material Breach or Material Document
Defect, as the case may be, is capable of being cured but not within the
applicable Initial Resolution Period, (iii) that the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period,
(iv) what actions the Seller is pursuing in connection with the cure thereof,
and (v) that the Seller anticipates that such Material Breach or Material
Document Defect, as the case may be, will be cured within an additional period
not to exceed the applicable Resolution Extension Period (as defined below),
then the Seller shall have an additional period equal to the applicable
Resolution Extension Period to complete such cure or, failing such, to
repurchase the Defective Mortgage Loan; and provided, further, that, if the
Seller's obligation to repurchase any Defective Mortgage Loan as a result of a
Material Breach or Material Document Defect arises within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the Defective Mortgage Loan is a "defective obligation" within
the meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury regulation
section 1.860G-2(f)) and if the Defective Mortgage Loan is still subject to the
Pooling and Servicing Agreement, then the Seller may, at its option, subject to
the terms, conditions and limitations set forth in the Pooling and Servicing
Agreement, in lieu of repurchasing such Defective Mortgage Loan (but, in any
event, no later than such repurchase would have to have been completed), (i)
replace such Defective Mortgage Loan with one or more substitute mortgage loans
that individually and collectively satisfy the requirements of the definition of
"Qualifying Substitute Mortgage Loan" set forth in the Pooling and Servicing
Agreement, and (ii) pay any corresponding Substitution Shortfall Amount, such
substitution and payment to be effected in accordance with the terms of the
Pooling and Servicing Agreement. Any such repurchase or replacement of a
Defective Mortgage Loan shall be on a whole loan, servicing released basis. The
Seller shall have no obligation to monitor the Mortgage Loans regarding the
existence of a Material Breach or Material Document Defect, but if the Seller
discovers a Material Breach or Material Document Defect with respect to a
Mortgage Loan, it will notify the Trustee.
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage
Loan throughout the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (A) the 90th day following the
end of such Initial Resolution Period and (B) the 45th day following the
Seller's receipt of written notice from the Trustee, the General Master
Servicer or the General Special Servicer of the occurrence of any
Servicing Transfer Event with respect to such Mortgage Loan subsequent to
the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial Resolution Period,
the period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the 90th day following the earlier of
(A) the end of such Initial Resolution Period and (B) the Seller's receipt
of written notice from the Trustee, the General Master Servicer or the
General Special Servicer of the occurrence of such Servicing Transfer
Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the commencement of the applicable Initial Resolution Period, zero
(-0-) days, provided that, if the Seller did not receive written notice
from the Trustee, the General Master Servicer or the General Special
Servicer of the relevant Servicing Transfer Event as of the commencement
of the applicable Initial Resolution Period, then such Servicing Transfer
Event will be deemed to have occurred during such Initial Resolution
Period and clause (iii) of this definition will be deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document for any Mortgage
Loan; and provided, further, that if a Material Document Defect exists with
respect to any Mortgage Loan, if such Mortgage Loan is then subject to the
Pooling and Servicing Agreement, and if the Seller escrows with the General
Master Servicer, prior to the end of the Initial Resolution Period and any
Resolution Extension Period otherwise applicable to the remediation of such
Material Document Defect without regard to this proviso, cash in the amount of
the then Purchase Price for such Mortgage Loan and subsequently delivers to the
General Master Servicer, on a monthly basis, such additional cash as may be
necessary to maintain a total escrow equal to the Purchase Price for such
Mortgage Loan as such Purchase Price may increase over time (the total amount of
cash delivered to the General Master Servicer with respect to any Mortgage Loan
as contemplated by this proviso or the immediately following proviso, the
"Purchase Price Security Deposit"), then the Resolution Extension Period
applicable to the remediation of such Material Document Defect shall be extended
until the earliest of (i) the second anniversary of the Closing Date, (ii) the
date on which such Mortgage Loan is no longer outstanding and part of the Trust
Fund, and (iii) if such Mortgage Loan becomes a Specially Serviced Mortgage Loan
under the Pooling and Servicing Agreement, and if the General Special Servicer
determines in its reasonable judgment that such Material Document Defect will
materially interfere with or delay the realization against the related Mortgaged
Property or materially increase the cost thereof, the end of the 30th day
following the Seller's receipt of written notice from the General Special
Servicer of the occurrence of the related Servicing Transfer Event and of such
determination; and provided, further, that if the Material Document Defect
referred to in the preceding proviso consists of a failure to deliver a
Specially Designated Mortgage Loan Document with respect to any Mortgage Loan,
and if the Seller delivers to the General Master Servicer a Purchase Price
Security Deposit equal to 25% of the outstanding principal balance of the
subject Mortgage Loan, then the Resolution Extension Period applicable to the
remediation of such Material Document Defect shall be extended to, and include,
the 15th day following the end of the applicable Initial Resolution Period.
The General Master Servicer shall establish, and maintain any
Purchase Price Security Deposit delivered to it with respect to any Mortgage
Loan in, one or more accounts (individually and collectively, the "Purchase
Price Security Deposit Account") and shall be entitled to make withdrawals from
such account(s) for the following purposes: (i) to cover any costs and expenses
resulting from the applicable Material Document Defect; (ii) upon any discounted
payoff or other liquidation of such Mortgage Loan, to cover any Realized Loss
related thereto; and (iii) if the Seller so directs, or if the balance on
deposit in the Purchase Price Security Deposit Account declines, and for 45 days
remains, below the Purchase Price for such Mortgage Loan (except where a
Purchase Price Security Deposit equal to 25% of the outstanding principal
balance of the subject Mortgage Loan is permitted to be delivered in order to
obtain a 15-day Resolution Extension Period with respect to the failure to
deliver a Specially Designated Mortgage Loan Document), or if such Material
Document Defect is not remedied on or before the second anniversary of the
Closing Date, or if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan under the Pooling and Servicing Agreement and the General Special Servicer
determines in its reasonable judgment that such Material Document Defect will
materially interfere with or delay the realization against the related Mortgaged
Property or materially increase the costs thereof and the Seller has received 30
days' prior written notice from the General Special Servicer of the occurrence
of the related Servicing Transfer Event and of such determination, to apply the
Purchase Price Security Deposit to a full or partial, as applicable, payment of
the Purchase Price for such Mortgage Loan (with the Seller to pay any remaining
balance of such Purchase Price). The Seller may obtain a release of the Purchase
Price Security Deposit for any Mortgage Loan (net of any amounts payable
therefrom as contemplated by the prior sentence) upon such Mortgage Loan's being
paid in full or otherwise satisfied, liquidated or removed from the Trust Fund
or upon the subject Material Document Defect's being remedied in all material
respects. The Seller may direct the General Master Servicer to invest or cause
the investment of the funds deposited in any Purchase Price Security Deposit
Account in one or more Permitted Investments that bear interest or are sold at a
discount and that mature, unless payable on demand, no later than the Business
Day prior to the next Master Servicer Remittance Date. The General Master
Servicer shall act upon the written instructions of the Seller with respect to
the investment of funds in any Purchase Price Security Deposit Account in such
Permitted Investments, provided that in the absence of appropriate written
instructions from the Seller, the General Master Servicer shall have no
obligation to invest or direct the investment of funds in such Purchase Price
Security Deposit Account. All income and gain realized from the investment of
funds deposited in any Purchase Price Security Deposit Account shall be for the
benefit of the Seller and shall be withdrawn by the General Master Servicer and
remitted to the Seller on each Master Servicer Remittance Date (net of any
losses incurred and any deposits required to be made by the Seller as
contemplated by the second proviso to the prior paragraph), and the Seller shall
remit to the General Master Servicer from the Seller's own funds for deposit
into such Purchase Price Security Deposit Account the amount of any realized
losses (net of realized gains) in respect of such Permitted Investments
immediately upon realization of such net losses and receipt of written notice
thereof from the General Master Servicer; provided that the Seller shall not be
required to make any such deposit for any realized loss which is incurred solely
as a result of the insolvency of the federal or state depository institution or
trust company that holds such Purchase Price Security Deposit Account. Neither
the Trustee nor the General Master Servicer shall have any responsibility or
liability with respect to the investment directions of the Seller, the
investment of funds in any Purchase Price Security Deposit Account in Permitted
Investments or any losses resulting therefrom.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by this Section 5(a), then, prior to the subject repurchase or
substitution, the General Master Servicer shall use reasonable efforts, subject
to the terms of such Mortgage Loans, to prepare and, to the extent necessary and
appropriate, have executed by the related Borrower and record, such
documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loans in such Cross-Collateralized Group that are to be
repurchased or replaced, on the one hand, and the remaining Mortgage Loans
therein, on the other hand, such that those two groups of Mortgage Loans are
each secured only by the Mortgaged Properties identified in the Mortgage Loan
Schedule as directly corresponding thereto, provided that no such termination
shall be effected unless and until (i) the Controlling Class Representative has
consented in writing (which consent may be given or withheld in its sole
discretion) and (ii) the Trustee and the General Master Servicer shall have
received from the Seller (A) an Opinion of Counsel from independent counsel to
the effect that such termination will not cause an Adverse REMIC Event to occur
with respect to the Upper-Tier REMIC or the Lower-Tier REMIC or an Adverse
Grantor Trust Event with respect to the Grantor Trust and (B) written
confirmation from each Rating Agency that such termination will not cause an
Adverse Rating Event to occur with respect to any Class of Rated Certificates;
and provided, further, that the Seller may, at its option, repurchase or replace
the entire subject Cross-Collateralized Group pursuant to the first paragraph of
this Section 5(a) in lieu of terminating the cross-collateralization. All costs
and expenses incurred by the Trustee and the General Master Servicer pursuant to
this paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased or replaced.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by the Seller as
contemplated by the immediately preceding paragraph, the Seller must satisfy
both the requirements set forth in the immediately preceding paragraph and the
Crossed Mortgage Loan Repurchase Criteria (as defined in the Pooling and
Servicing Agreement).
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the second preceding
paragraph for any reason (including, but not limited to, the Seller's failure to
satisfy any of the conditions set forth in the first proviso to the first
sentence of the second preceding paragraph), or if the proposed repurchase or
replacement of less than all of the Mortgage Loans included within such
Cross-Collateralized Group does not satisfy the applicable Crossed Mortgage Loan
Repurchase Criteria as contemplated by the immediately preceding paragraph,
then, for purposes of (i) determining whether the subject Breach or Document
Defect is a Material Breach or Material Document Defect, as the case may be, and
(ii) the application of remedies (including, without limitation, repurchase and
replacement as contemplated by this Section 5(a)), such Cross-Collateralized
Group shall be treated as a single Mortgage Loan.
Whenever one or more mortgage loans are substituted by the Seller
for a Defective Mortgage Loan as contemplated by this Section 5(a), the Seller
shall (i) deliver the related Mortgage File for each such substitute mortgage
loan to the Trustee, (ii) certify that such substitute mortgage loan satisfies
or such substitute mortgage loans satisfy, as the case may be, all of the
requirements of the definition of "Qualifying Substitute Mortgage Loan" set
forth in the Pooling and Servicing Agreement and (iii) send such certification
to the Trustee. No mortgage loan may be substituted for a Defective Mortgage
Loan as contemplated by this Section 5(a) if the Defective Mortgage Loan to be
replaced was itself a Replacement Mortgage Loan, in which case, absent cure, in
all material respects, of the relevant Material Breach or Material Document
Defect, the Defective Mortgage Loan will be required to be repurchased as
contemplated hereby. Monthly Payments due with respect to each Replacement
Mortgage Loan (if any) after the related date of substitution, and Monthly
Payments due with respect to each Defective Mortgage Loan after the Cut-off Date
(or, in the case of a Replacement Mortgage Loan, after the date on which it is
added to the Trust Fund) and received by the General Master Servicer or the
General Special Servicer on behalf of the Trust on or prior to the related date
of repurchase or replacement, shall belong to the Trust Fund. Monthly Payments
due with respect to each Replacement Mortgage Loan (if any) on or prior to the
related date of substitution, and Monthly Payments due with respect to each
Defective Mortgage Loan, and received by the General Master Servicer or the
General Special Servicer on behalf of the Trust, after the related date of
repurchase or replacement, shall belong to the Seller.
(b) Notwithstanding Section 5(a), if there exists a Breach of any
representation or warranty on the part of the Seller with respect to any
Mortgage Loan set forth in, or made pursuant to, Section 4(b) or 4(d) of this
Agreement that the related Mortgage Loan Documents or any particular related
Mortgage Loan Document requires the related Borrower to bear the costs and
expenses associated with any particular action or matter under such Mortgage
Loan Document(s), then the Seller shall, within 90 days of the Seller's receipt
of written direction from the General Master Servicer or the General Special
Servicer, pay the amount of any such costs and expenses borne by the Trust that
are the basis of such Breach and have not been reimbursed by the related
Borrower; provided, however, that in the event any such costs and expenses
exceed $10,000, the Seller shall have the option to repurchase such Mortgage
Loan at the applicable Purchase Price as contemplated by Section 5(a), replace
such Mortgage Loan and pay the applicable Substitution Shortfall Amount as
contemplated by Section 5(a) or pay such costs and expenses. Except as provided
in the proviso to the immediately preceding sentence, the Seller shall remit the
amount of such costs and expenses and upon its making such payment, the Seller
shall be deemed to have cured such Breach in all respects. Provided such payment
is made, this paragraph describes the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Breach,
regardless of whether it constitutes a Material Breach, and the Seller shall not
be obligated to repurchase or otherwise cure such Breach under any
circumstances.
(c) If any Defective Mortgage Loan is to be repurchased or replaced
as contemplated by Section 5(a), the Seller shall amend the Mortgage Loan
Schedule to reflect the removal of the Defective Mortgage Loan and, if
applicable, the substitution of the related Replacement Mortgage Loan(s) and
shall forward such amended schedule to the General Master Servicer.
It shall be a condition to any repurchase or replacement of a
Defective Mortgage Loan by the Seller pursuant to Section 5(a) that the Trustee
shall have executed and delivered such endorsements and instruments of release,
transfer and/or assignment then presented to it by the Seller, in each case
without recourse, as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Defective Mortgage Loan (including any property
acquired in respect thereof or proceeds of any insurance policy with respect
thereto) and the related Mortgage Loan Documents, to the extent that such
ownership interest was transferred to the Purchaser hereunder.
(d) If, on or after September 13, 2004, the Seller receives notice
of a Material Document Defect with respect to any Mortgage Loan, which Material
Document Defect constitutes a Recording Omission, and if such Mortgage Loan is
still subject to the Pooling and Servicing Agreement, then the Seller, with the
written consent of the Controlling Class Representative, which consent may be
granted or withheld in its sole discretion, and written confirmation from each
Rating Agency that the following arrangement will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates, in lieu of
repurchasing or replacing such Mortgage Loan (as and to the extent contemplated
by Section 5(a) above), but in no event later than such repurchase would have to
have been completed, establish a Recording Omission Credit or a Recording
Omission Reserve with the General Master Servicer; provided that if the Seller
has already established a Purchase Price Security Deposit with respect to such
Mortgage Loan in accordance with Section 5(a), the outstanding balance of such
Purchase Price Security Deposit (when, if applicable, combined with an
additional amount being tendered by the Seller) is not less than the amount of
the required Recording Omission Reserve and the establishment of a Recording
Omission Reserve will not result in an Adverse Rating Event with respect to any
Class of Rated Certificates, the existing Purchase Price Security Deposit
(together with any additional amount being tendered by the Seller, if
applicable) shall constitute the establishment of a Recording Omission Reserve
with respect to such Mortgage Loan for purposes of this Section 5(d). In
furtherance of the preceding sentence, the General Master Servicer shall
establish one or more accounts (individually and collectively, the "Special
Reserve Account"), each of which shall be an Eligible Account, and the General
Master Servicer shall deposit any Recording Omission Reserve into the Special
Reserve Account within one Business Day of receipt. The Seller may direct the
General Master Servicer to invest or cause the investment of the funds deposited
in the Special Reserve Account in one or more Permitted Investments that bear
interest or are sold at a discount and that mature, unless payable on demand, no
later than the Business Day prior to the next Master Servicer Remittance Date.
The General Master Servicer shall act upon the written instructions of the
Seller with respect to the investment of funds in the Special Reserve Account in
such Permitted Investments, provided that in the absence of appropriate written
instructions from the Seller, the General Master Servicer shall have no
obligation to invest or direct the investment of funds in such Special Reserve
Account. All income and gain realized from the investment of funds deposited in
such Special Reserve Account shall be for the benefit of the Seller and shall be
withdrawn by the General Master Servicer and remitted to the Seller on each
Master Servicer Remittance Date (net of any losses incurred), and the Seller
shall remit to the General Master Servicer from the Seller's own funds for
deposit into such Special Reserve Account the amount of any realized losses (net
of realized gains) in respect of such Permitted Investments immediately upon
realization of such net losses and receipt of written notice thereof from the
General Master Servicer; provided that the Seller shall not be required to make
any such deposit for any realized loss which is incurred solely as a result of
the insolvency of the federal or state depository institution or trust company
that holds such Special Reserve Account. Neither the Trustee nor the General
Master Servicer shall have any responsibility or liability with respect to the
investment directions of the Seller, the investment of funds in the Special
Reserve Account in Permitted Investments or any losses resulting therefrom. A
Recording Omission Credit shall (i) entitle the General Master Servicer to draw
upon the Recording Omission Credit on behalf of the Trustee upon presentation of
only a sight draft or other written demand for payment, (ii) permit multiple
draws by the General Master Servicer, and (iii) be issued by such issuer and
containing such other terms as the General Master Servicer may reasonably
require to make such Recording Omission Credit reasonably equivalent security to
a Recording Omission Reserve in the same amount. Once a Recording Omission
Reserve or Recording Omission Credit is established with respect to any Mortgage
Loan, the General Master Servicer shall, from time to time, withdraw funds from
the related Special Reserve Account or draw upon the related Recording Omission
Credit, as the case may be, and apply the proceeds thereof to pay the losses or
expenses directly incurred by the Trust as a result of a Recording Omission. The
Recording Omission Reserve or Recording Omission Credit or any unused balance
thereof with respect to any Mortgage Loan will be released to the Seller by the
General Master Servicer upon the earlier of the Seller's cure of all Recording
Omissions with respect to such Mortgage Loan (provided that the Trust has been
reimbursed with respect to all losses and expenses relating to Recording
Omissions with respect to such Mortgage Loan) and such Mortgage Loan's no longer
being a part of the Trust Fund under the Pooling and Servicing Agreement.
(e) It is understood and agreed that the obligations of the Seller
set forth in this Section 5 to cure a Material Breach or a Material Document
Defect, repurchase or replace the related Defective Mortgage Loan(s), cover
certain expenses or establish a Purchase Price Security Deposit, a Recording
Omission Credit or a Recording Omission Reserve with respect to the related
Defective Mortgage Loan(s), constitute the sole remedies against the Seller
available to the Purchaser, the Certificateholders or the Trustee on behalf of
the Certificateholders with respect to a Breach or Document Defect in respect of
any Mortgage Loan.
(f) If the Seller disputes that a Material Document Defect or
Material Breach exists with respect to a Mortgage Loan or otherwise refuses (i)
to effect a correction or cure of such Material Document Defect or Material
Breach, (ii) to repurchase the affected Mortgage Loan from the Purchaser or its
assignee or (iii) to replace such Mortgage Loan with a Qualifying Substitute
Mortgage Loan, each in accordance with the foregoing provisions of this Section
5, then (provided that (A) the Mortgage Loan is then subject to the Pooling and
Servicing Agreement, (B) at least the applicable Initial Resolution Period has
expired and (C) the Mortgage Loan is then in default and is then a Specially
Serviced Mortgage Loan), the General Special Servicer may, subject to the
Servicing Standard, modify, work-out or foreclose, sell or otherwise liquidate
(or permit the liquidation of) the Mortgage Loan pursuant to the terms of the
Pooling and Servicing Agreement, while pursuing the repurchase claim, and such
action shall not be a defense to the repurchase claim or alter the applicable
Purchase Price (it being understood and agreed that the foregoing is not
intended to otherwise delay the actions of the General Special Servicer with
respect to a Specially Serviced Mortgage Loan).
If any REO Property in respect of any Mortgage Loan is subject to
the Pooling and Servicing Agreement and there is any alleged Material Document
Defect or Material Breach with respect to such REO Property or the related
Mortgage Loan, then the Seller shall be notified promptly and in writing by the
General Special Servicer of any offer that it receives to purchase such REO
Property. Upon the receipt of such notice by the Seller, the Seller shall then
have the right to repurchase such REO Property from the Trust at a purchase
price equal to the amount of such offer. The Seller shall have three (3)
Business Days to purchase such REO Property from the date that it was notified
of such offer. The General Special Servicer shall be obligated to provide the
Seller with any appraisal or other third-party reports relating to such REO
Property within its possession to enable the Seller to evaluate such REO
Property. Any sale of a Mortgage Loan, or foreclosure upon such Mortgage Loan
and sale of any related REO Property, to a Person other than the Seller shall be
(i) without recourse of any kind (either expressed or implied) by such Person
against the Seller and (ii) without representation or warranty of any kind
(either expressed or implied) by the Seller to or for the benefit of such
Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim of the
Trust against the Seller for repurchase of the subject Mortgage Loan or REO
Property. The provisions of this Section 5 regarding remedies against the Seller
for a Material Breach or Material Document Defect with respect to any Mortgage
Loan shall also apply to the related REO Property.
If the Seller fails to correct or cure the Material Document Defect
or Material Breach or purchase the subject REO Property, then the provisions
above regarding notice of offers related to such REO Property and the Seller's
right to purchase such REO Property shall apply. If a court of competent
jurisdiction issues a final order that the Seller is or was obligated to
repurchase the related Mortgage Loan or REO Property or the Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to the Pooling
and Servicing Agreement, the Seller will be obligated to pay to the Trust the
amount, if any, by which the applicable Purchase Price exceeds any Liquidation
Proceeds received upon such liquidation (including those arising from any sale
to the Seller); provided that the prevailing party in such action shall be
entitled to recover all costs, fees and expenses (including reasonable
attorneys' fees) related thereto.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx,
000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx, or at such other location as agreed upon
between the parties hereto, at 10:00 a.m., New York City time, on the Closing
Date.
The Closing shall be subject to each of the following conditions:
(i) all of the representations and warranties of each of the Seller
and the Purchaser made pursuant to Section 4 of this Agreement (subject,
in the case of the Seller, to the exceptions set forth in Schedule C-1
hereto) shall be true and correct in all material respects as of the
Closing Date;
(ii) all documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and reasonably
acceptable to the Purchaser and, in the case of the Pooling and Servicing
Agreement (insofar as such Agreement affects the obligations of the Seller
hereunder), to the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(iii) the Seller shall have delivered and released to the Purchaser
or its designee, all documents, funds and other assets required to be
delivered thereto on or before the Closing Date pursuant to Section 2 of
this Agreement;
(iv) the result of any examination of the Mortgage Files for, and
any other documents and records relating to, the Mortgage Loans performed
by or on behalf of the Purchaser pursuant to Section 3 hereof shall be
satisfactory to the Purchaser in its reasonable determination;
(v) all other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with
in all material respects, and the Seller shall have the ability to comply
with all terms and conditions and perform all duties and obligations
required to be complied with or performed by it after the Closing Date;
(vi) the Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement;
(vii) the Seller shall have received the purchase price for the
Mortgage Loans, as contemplated by Section 1; and
(viii) neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their commercially reasonable best efforts
to perform their respective obligations hereunder in a manner that will enable
the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
(i) this Agreement, duly executed by the Purchaser and the Seller;
(ii) each of the Pooling and Servicing Agreement and the
Indemnification Agreement, duly executed by the respective parties
thereto;
(iii) an Officer's Certificate substantially in the form of Exhibit
D-1 hereto, executed by the Secretary or an assistant secretary of the
Seller, in his or her individual capacity on behalf of the Seller, and
dated the Closing Date, and upon which CSFB Mortgage Securities, CSFB LLC,
the other Underwriters and the Rating Agencies (collectively, for purposes
of this Section 7, the "Interested Parties") may rely, attaching thereto
as an exhibit the bylaws of the Seller;
(iv) a certificate of corporate existence with respect to the Seller
issued by the Comptroller of Currency not earlier than fifteen (15) months
prior to the Closing Date, and upon which the Interested Parties may rely;
(v) a Certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer of the Seller on the Seller's
behalf and dated the Closing Date, and upon which the Interested Parties
may rely;
(vi) a written opinion or opinions of counsel for the Seller (which
may include an opinion of in-house counsel), dated the Closing Date and
addressed to the Interested Parties and the respective parties to the
Pooling and Servicing Agreement, which opinion shall be in form reasonably
acceptable to the Purchaser and shall cover such corporate and other
matters as shall be reasonably required by the Purchaser;
(vii) one or more comfort letters from Ernst & Young, certified
public accountants, dated the date of any preliminary Prospectus
Supplement and of the Prospectus Supplement, respectively, and addressed
to, and in form and substance acceptable to, CSFB Mortgage Securities,
CSFB LLC, the other Underwriters and their respective counsel, stating in
effect that, using the assumptions and methodology used by CSFB Mortgage
Securities, all of which shall be described in such letters, they have
recalculated such numbers and percentages relating to the Mortgage Loans
set forth in any preliminary Prospectus Supplement and the Prospectus
Supplement, compared the results of their calculations to the
corresponding items in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, and found each such number and
percentage set forth in any preliminary Prospectus Supplement and the
Prospectus Supplement, respectively, to be in agreement with the results
of such calculations;
(viii) such further certificates, opinions and documents as the
Purchaser may reasonably request or any Rating Agency may require;
(ix) a written certificate or certificates of the Purchaser dated
the Closing Date in form acceptable to the Seller confirming the
Purchaser's representations and warranties in Section 4 of this Agreement
as of the Closing Date, with the resolutions of the Purchaser authorizing
the transactions set forth herein, together with copies of the
organizational documents and certificate of good standing dated not
earlier than 30 days prior to the Closing Date of the Purchaser; and
(x) such other certificates of the Purchaser's officers, such
opinions of the Purchaser's counsel (which may include in-house counsel)
and such other documents required to evidence fulfillment of the
conditions set forth in this Agreement as the Seller or its counsel may
reasonably request.
SECTION 8. Costs. Whether or not this Agreement is terminated,
except to the extent otherwise specifically provided in this Agreement, the
costs and expenses incurred in connection with the transactions herein
contemplated shall be allocated between the parties hereto as provided in any
terms letter agreement or other agreement between them which pertains to such
transactions.
SECTION 9. Notices. All demands, notices and communications
hereunder shall be in writing, shall be effective only upon receipt by the
Purchaser or the Seller, as applicable, and shall be personally delivered,
mailed, by registered mail, postage prepaid, delivered by overnight mail or
courier service, or transmitted by facsimile and confirmed to the sender and (a)
if to the Purchaser, addressed to the Purchaser at 00 Xxxxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx
XxXxxxxxx, Esq., Compliance Department, Telecopy No: (000) 000-0000, or such
other address or telecopy number as may be designated by the Purchaser to the
Seller in writing, or (b) if to the Seller, addressed to the Seller at 10851
Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries), and X.X. Xxx
00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for communications by United States
mail), Attention: Xxxxx Xxxx, Telecopy No.: (000) 000-0000, with a copy to PNC
Bank, National Association, One PNC Plaza, 21st Floor, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxx Xxxxx, Telecopy No.:
(000) 000-0000, or such other address as may be designated by the Seller to the
Purchaser in writing.
SECTION 10. Miscellaneous. Neither this Agreement nor any term or
provision hereof may be changed, waived, discharged or terminated except by a
writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may be executed in any number of counterparts (and by
each of the parties hereto on different counterparts), each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns, and no other person will have any right or
obligation hereunder. Notwithstanding any contrary provision of this Agreement
or the Pooling and Servicing Agreement, the Purchaser shall not consent to any
amendment of the Pooling and Servicing Agreement which will increase the
obligations of, or otherwise adversely affect, the Seller, without the consent
of the Seller.
SECTION 11. Characterization. The parties hereto agree that it is
their express intent that the conveyance contemplated by this Agreement be, and
be treated for all purposes as, a sale by the Seller of all the Seller's right,
title and interest in and to the Mortgage Loans. The parties hereto further
agree that it is not their intention that such conveyance be a pledge of the
Mortgage Loans by the Seller to secure a debt or other obligation of the Seller.
However, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to continue to be property of the Seller, then: (a) this
Agreement shall be deemed to be a security agreement under applicable law; (b)
the transfer of the Mortgage Loans provided for herein shall be deemed to be a
grant by the Seller to the Purchaser of a first priority security interest in
all of the Seller's right, title and interest in and to the Mortgage Loans and
all amounts payable to the holder(s) of the Mortgage Loans in accordance with
the terms thereof (other than scheduled payments of interest and principal due
on or before the Cut-off Date) and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property; (c) the assignment by CSFB Mortgage Securities to the Trustee of its
interests in the Mortgage Loans as contemplated by Section 16 hereof shall be
deemed to be an assignment of any security interest created hereunder; (d) the
possession by the Purchaser of the related Mortgage Notes and such other items
of property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the Purchaser's security interest under applicable law; and (e)
notifications to, and acknowledgments, receipts or confirmations from, persons
or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, bailees or agents (as
applicable) of the Purchaser for the purpose of perfecting such security
interest under applicable law. The Seller and the Purchaser 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, 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 and the Pooling and Servicing Agreement. In
connection with the foregoing, the Seller authorizes the Purchaser to execute
and file such UCC financing statements as the Purchaser may deem necessary or
appropriate to accomplish the foregoing.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller delivered pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser, notwithstanding any restrictive or qualified
endorsement or assignment in respect of any Mortgage Loan.
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or is
held to be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or is held to be void or unenforceable in any
particular jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE
PURCHASER AND THE SELLER HEREBY IRREVOCABLY (I) SUBMIT 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) AGREE THAT ALL CLAIMS
WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
NEW YORK STATE OR FEDERAL COURTS; (III) WAIVE, TO THE FULLEST POSSIBLE EXTENT,
THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREE 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 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. In connection with its transfer
of the Mortgage Loans to the Trust as contemplated by the recitals hereto, CSFB
Mortgage Securities is expressly authorized to assign its rights and obligations
under this Agreement, in whole or in part, to the Trustee for the benefit of the
registered holders and beneficial owners of the Certificates. To the extent of
any such assignment, the Trustee, for the benefit of the registered holders and
beneficial owners of the Certificates, shall be the Purchaser hereunder.
Notwithstanding any provision of this Agreement to the contrary, the Trustee
shall have no authority or right to assign or transfer its rights and
obligations under this Agreement, in whole or in part, to any other Person
(other than a successor Trustee), regardless of whether such assignment or
transfer is made in connection with the transfer of any Mortgage Loan by the
Trust as contemplated by the terms of the Pooling and Servicing Agreement, or
otherwise; provided, however, that the Trustee, for the benefit of the
registered holders and beneficial owners of the Certificates, is expressly
authorized to assign its rights and obligations under this Agreement with
respect to any Specially Designated Defaulted Mortgage Loan (as defined in
Pooling and Servicing Agreement) to the Majority Controlling Class
Certificateholder (as defined in the Pooling and Servicing Agreement) or its
assignee in connection with its or such assignee's purchase of such Mortgage
Loan pursuant to Section 3.18(c) of the Pooling and Servicing Agreement. Subject
to the foregoing, this Agreement shall bind and inure to the benefit of and be
enforceable by the Seller and the Purchaser, and their respective successors and
permitted assigns.
SECTION 17. Information. The Seller shall, for the purpose of
facilitating the issuance and sale of the Certificates by CSFB Mortgage
Securities, provide the Purchaser with such information about the Seller, the
Mortgage Loans and the Seller's underwriting and servicing procedures as is (i)
customary in commercial mortgage loan securitization transactions, (ii) required
by a Rating Agency or a governmental agency or body or (iii) reasonably
requested by the Purchaser for use in a public or private disclosure document.
SECTION 18. Cross-Collateralized Mortgage Loans. Notwithstanding
anything herein to the contrary, it is hereby acknowledged that certain groups
of Mortgage Loans are, in the case of each such particular group of Mortgage
Loans (each, a "Cross-Collateralized Group"), by their terms, cross-defaulted
and cross-collateralized. Each Cross-Collateralized Group is identified on the
Mortgage Loan Schedule. For purposes of reference, the Mortgaged Property that
relates or corresponds to any of the Mortgage Loans referred to in this Section
18 shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including, without
limitation, each of the representations and warranties set forth in Exhibit C
hereto and each of the capitalized terms used herein but defined in the Pooling
and Servicing Agreement, shall be interpreted in a manner consistent with this
Section 18. In addition, if there exists with respect to any
Cross-Collateralized Group only one original of any document referred to in the
definition of "Mortgage File" in the Pooling and Servicing Agreement and
covering all the Mortgage Loans in such Cross-Collateralized Group, the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans constituting a part of such Cross-Collateralized Group shall be
deemed an inclusion of such original in the Mortgage File for each Mortgage Loan
included within such Cross-Collateralized Group.
SECTION 19. Entire Agreement. Except as otherwise expressly
contemplated hereby, this Agreement constitutes the entire agreement and
understanding of the parties with respect to the matters addressed herein, and
this Agreement supersedes any prior agreements and/or understandings, written or
oral, with respect to such matters.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
By:_________________________________________
Name:
Title:
EXHIBIT A
MORTGAGE LOAN SCHEDULE
-----------------------------------------------------------------------------------------------------------------------------
NUMBER PROPERTY NAME ADDRESS CITY
-----------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxx Xxxxxx
7 Mooresville Consumer Square Xxxxxx Station Boulevard Mooresville
8 Flower Hill Mall 2610-2750 Xxx xx xx Xxxxx Xxx Xxxxx
00 One Montrose Metro 00000 Xxxxxxxxx Xxxx Xxxxxxxxx
00 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx 000-000 Xxxxxxxxx Xxxxxx Xxxx Xxxxx Xxxxx
21 Rehoboth Bay Mobile Home Park 163 Rehoboth Bay Rehoboth Beach
22 Huntwick Apartments 5100 F. M. 0000 Xxxx Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxx Xxx Coachman Road Clearwater
24 Southern Hills Tower 0000 Xxxx 00xx Xxxxxx Xxxxx
00 Xxxxxxxx Xxxxx Xxxxxxxx 0000 Xxxx Xxxxxx Drive Tulsa
28 50-66 Office Building 11130 & 00000 Xxxx Xxxxxx Xxxxxxx
29 Chasco Xxxxx Apartments 0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxx Xxxxxx
31 Shady Grove Tech Center 00000 Xxxxx Xxxxx Xxxx Xxxxxxxxx
39 000-000 Xxxxxx Xxxx 000-000 Xxxxxx Xxxx Xxxxxxxxx
00 Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxxxx
47 Potomac Valley Bank Building 000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx
51 Stone Creek Apartment Homes 0000 Xxxxxxxxx Xxxxx Tyler
52 One Beltway North 10230 New Hampshire Avenue Silver Spring
57 The Park at Summerhill Apartments 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
58 Country Bend Apartments 0000 Xxxxx Xxxx Xxxxxxxx
00 Xxxxxx Xxxxxx Xxxxx 0-00 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx Farms
00 Xxxxxxxxxx Xxxxxx Self Storage 0000 00xx Xxxxxx Xxx Xxxxxxxxx
63 Professional Equity Xxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
00 Xxxxxx Xxxx Center 00000 Xxxxxxx Xxx Xxxxxx Xxxx
69 Fairfax Apartments 0000 Xxxxxxxx Xxxxxx Xxxxxx
76 Xxxx Gardens Apartments 000 Xxxx Xxxx Xxxxxxx
78 Kickingbird Apartments 0000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxx
79 Willow Tree Apartments 0000 Xxxxx Xxxxx Xxxxx Xxxxxxx
86 0 Xxxxxx Xxxxxx 0 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxxx
89 Brookwood Townhomes 000 Xxxxxxxxx 0xx Xxxxxx Xxxx Xxxxxxx
91 Orangewood Place Apartments 0000 Xxxxx 00xx Xxxxxx Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxx Drive Erie
-----------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
STATE ZIP CODE ORIGINAL BALANCE CUT-OFF BALANCE MONTHLY PAYMENT RATE ORIGINAL BALLOON TERM
------------------------------------------------------------------------------------------------------------------------------------
XX 00000 $29,000,000.00 $28,937,315.19 $173,869.65 6.00% 000
XX 00000 $24,500,000.00 $24,438,653.13 $161,848.95 6.93% 000
XX 00000 $24,000,000.00 $24,000,000.00 $151,696.33 6.50% 000
XX 00000 $20,590,000.00 $20,544,013.39 $120,812.45 5.80% 000
XX 00000 $15,000,000.00 $14,968,361.91 $91,384.22 6.15% 00
XX 00000 $13,000,000.00 $13,000,000.00 $76,277.89 5.80% 000
XX 00000 $12,300,000.00 $12,246,107.90 $77,744.37 6.50% 000
XX 00000 $12,000,000.00 $11,984,102.32 $72,177.68 6.03% 000
XX 00000 $12,000,000.00 $11,973,848.49 $71,560.77 5.95% 000
XX 00000 $11,800,000.00 $11,774,284.35 $70,368.09 5.95% 000
XX 00000 $11,040,000.00 $11,015,342.77 $64,777.54 5.80% 000
XX 00000 $10,300,000.00 $10,286,172.50 $61,093.06 5.90% 000
XX 00000 $9,120,000.00 $9,099,630.98 $53,511.88 5.80% 000
XX 00000 $6,700,000.00 $6,691,230.04 $40,818.29 6.15% 000
XX 00000 $5,880,000.00 $5,872,186.43 $35,253.57 6.00% 000
XX 00000 $5,520,000.00 $5,507,671.38 $32,388.77 5.80% 000
XX 00000 $5,200,000.00 $5,173,498.77 $33,554.45 6.70% 000
XX 00000 $5,120,000.00 $5,108,564.76 $30,041.76 5.80% 000
XX 00000 $4,800,000.00 $4,784,906.43 $28,011.50 5.75% 000
XX 00000 $4,765,000.00 $4,751,380.47 $29,338.92 6.25% 000
XX 00000 $4,737,000.00 $4,730,799.51 $28,859.14 6.15% 000
XX 00000 $4,400,000.00 $4,400,000.00 $29,709.12 6.50% 000
XX 00000 $4,336,000.00 $4,326,315.79 $25,441.61 5.80% 000
XX 00000 $4,250,000.00 $4,240,615.98 $25,126.78 5.87% 000
XX 00000 $4,000,000.00 $3,977,037.62 $25,943.92 6.75% 000
XX 00000 $3,250,000.00 $3,243,088.87 $19,694.83 6.10% 000
XX 00000 $3,150,000.00 $3,140,299.43 $20,199.33 5.95% 000
XX 00000 $3,125,000.00 $3,118,354.67 $18,937.34 6.10% 000
XX 00000 $2,715,000.00 $2,704,623.31 $16,716.72 6.25% 000
XX 00000 $2,640,000.00 $2,636,455.87 $15,658.80 5.90% 000
XX 00000 $2,550,000.00 $2,542,919.40 $15,950.40 6.40% 000
XX 00000 $2,100,000.00 $2,095,642.38 $12,930.06 6.25% 120
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ORIGINAL AMORT TERM REMAINING TERM REMAINING AMORT. TERM CROSS COLLATERALIZED CO-OP LOAN ARD DATE
------------------------------------------------------------------------------------------------------------------------------------
360 119 359 No No N/A
360 118 358 No No N/A
360 116 356 No No N/A
360 119 359 No No N/A
360 83 359 No No N/A
360 119 359 No No N/A
360 116 356 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 115 355 No No N/A
360 119 359 No No N/A
360 118 358 No No N/A
360 118 358 No No N/A
360 119 359 No No N/A
300 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 116 356 No No N/A
360 119 359 No No N/A
300 119 299 No No N/A
360 119 359 No No N/A
360 117 357 No No N/A
360 119 359 No No N/A
360 118 358 No No N/A
360 119 359 No No N/A
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
DEFEASANCE FEE SIMPLE/LEASEHOLD HOSPITALITY MTG. LOAN SELLER ORIGINATOR INTEREST CALCULATION
----------------------------------------------------------------------------------------------------------------------
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
----------------------------------------------------------------------------------------------------------------------
---------------------------------------------------
SERVICING AND TRUSTEE FEES "A" LOAN
---------------------------------------------------
0.0974% No
0.1124% No
0.1024% No
0.1024% No
0.1324% No
0.0824% No
0.1324% No
0.1124% No
0.0824% No
0.0824% No
0.1024% No
0.1324% No
0.1024% No
0.1124% No
0.0824% No
0.1024% No
0.1324% No
0.1024% No
0.1324% No
0.0824% No
0.1324% No
0.0824% No
0.1024% No
0.0824% No
0.1324% No
0.1024% No
0.1824% No
0.1024% No
0.1124% No
0.0824% No
0.0824% No
0.0824% No
---------------------------------------------------
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SELLER
The Seller hereby represents and warrants that, as of the date
hereof:
1. The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States of
America.
2. The execution and delivery by the Seller of, and the performance
by the Seller under, this Agreement, the execution (including, without
limitation, by facsimile or machine signature) and delivery of any and all
documents contemplated by this Agreement, including, without limitation,
endorsements of Mortgage Notes, and the consummation by the Seller of the
transactions herein contemplated, do not: (a) violate the Seller's
organizational documents; or (b) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any indenture, agreement or other instrument to which the
Seller is a party or by which it is bound or which is applicable to it or any of
its assets, which default or breach, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of the
Seller to perform its obligations under this Agreement or the financial
condition of the Seller.
3. The Seller has full power and authority to enter into and perform
under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the event that
the related transaction is deemed to constitute a loan secured by all or part of
the Mortgage Loans, to pledge the Mortgage Loans) in accordance with, and under
the conditions set forth in, this Agreement.
5. Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes a valid, legal and binding obligation of
the Seller, enforceable against the Seller in accordance with the terms hereof,
subject to (a) applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and (b) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
6. The Seller is not in violation of, and its execution and delivery
of this Agreement and its performance under and compliance with the terms hereof
do not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Seller's good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
7. There are no actions, suits or proceedings pending or, to the
best of the Seller's knowledge, threatened against the Seller which, if
determined adversely to the Seller, would prohibit the Seller from entering into
this Agreement or, in the Seller's good faith and reasonable judgment, would be
likely to affect materially and adversely either the ability of the Seller to
perform its obligations hereunder or the financial condition of the Seller.
8. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings and recordings of
Mortgage Loan documents and assignments thereof that are contemplated by the
Pooling and Servicing Agreement to be completed after the Closing Date.
9. The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in effect
in any applicable jurisdiction.
10. The Mortgage Loans do not constitute all or substantially all of
the assets of the Seller.
11. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud its present or future
creditors.
12. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, its transfer of the Mortgage Loans to the
Purchaser, as contemplated herein.
13. After giving effect to its transfer of the Mortgage Loans to the
Purchaser, as provided herein, the value of the Seller's assets, either taken at
their present fair saleable value or at fair valuation, will exceed the amount
of the Seller's debts and obligations, including contingent and unliquidated
debts and obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct its
business.
14. The 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.
15. No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
16. In connection with its transfer of the Mortgage Loans to the
Purchaser as contemplated herein, the Seller is receiving new value and
consideration constituting at least reasonably equivalent value and fair
consideration.
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
The Purchaser hereby represents and warrants that, as of the date
hereof:
1. The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution and delivery by the Purchaser of, and the
performance by the Purchaser under, this Agreement, and the consummation by the
Purchaser of transactions herein contemplated, do not: (a) violate the
Purchaser's organizational documents; or (b) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any indenture, agreement or other instrument to
which the Purchaser is a party or by which it is bound or which is applicable to
it or any of its assets, which default or breach, in the Purchaser's good faith
and reasonable judgment, is likely to affect materially and adversely either the
ability of the Purchaser to perform its obligations under this Agreement or the
financial condition of the Purchaser.
3. The Purchaser has full power and authority to enter into and
perform under this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
4. Assuming due authorization, execution and delivery hereof by the
Seller, this Agreement constitutes a valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with the terms
hereof, subject to (a) applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of creditors'
rights generally, and (b) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
5. The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance with the
terms hereof do not constitute a violation of, any law, any order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Purchaser's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Purchaser to perform its obligations
under this Agreement or the financial condition of the Purchaser.
6. There are no actions, suits or proceedings pending or, to the
best of the Purchaser's knowledge, threatened against the Purchaser which, if
determined adversely to the Purchaser, would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and reasonable
judgment, would be likely to affect materially and adversely either the ability
of the Purchaser to perform its obligations hereunder or the financial condition
of the Purchaser.
7. No consent, approval, authorization or order of, or filing or
registration with, any state or federal court or governmental agency or body is
required for the consummation by the Purchaser of the transactions contemplated
herein, except for those consents, approvals, authorizations and orders that
previously have been obtained and those filings and registrations that
previously have been completed, and except for those filings of Mortgage Loan
documents and assignments thereof that are contemplated by the Pooling and
Servicing Agreement to be completed after the Closing Date.
EXHIBIT C
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MORTGAGE LOANS
FOR PURPOSES OF THESE REPRESENTATIONS AND WARRANTIES, THE PHRASES "TO THE
KNOWLEDGE OF SELLER" OR "TO THE SELLER'S KNOWLEDGE" OR PHRASES OF SIMILAR IMPORT
SHALL MEAN, EXCEPT WHERE OTHERWISE EXPRESSLY SET FORTH BELOW, THE ACTUAL STATE
OF KNOWLEDGE OF THE SELLER OR ANY SERVICER ACTING ON ITS BEHALF REGARDING THE
MATTERS REFERRED TO, IN EACH CASE WITHOUT HAVING CONDUCTED ANY INDEPENDENT
INQUIRY OR DUE DILIGENCE WITH RESPECT TO SUCH MATTERS AND WITHOUT ANY ACTUAL OR
IMPLIED OBLIGATION TO MAKE SUCH INQUIRY OR PERFORM SUCH DUE DILIGENCE, OTHER
THAN MAKING SUCH INQUIRY OR PERFORMING SUCH DUE DILIGENCE AS WOULD BE
CUSTOMARILY PERFORMED BY PRUDENT COMMERCIAL OR MULTIFAMILY MORTGAGE LENDERS OR
SERVICERS (AS THE CASE MAY BE) WITH RESPECT TO SIMILAR MORTGAGE LOANS OR
MORTGAGED PROPERTIES. ALL INFORMATION CONTAINED IN DOCUMENTS WHICH ARE PART OF
OR REQUIRED TO BE PART OF A MORTGAGE FILE SHALL BE DEEMED TO BE WITHIN THE
KNOWLEDGE OF THE SELLER. WHEREVER THERE IS A REFERENCE TO RECEIPT BY, OR
POSSESSION OF, THE SELLER OF ANY INFORMATION OR DOCUMENTS, OR TO ANY ACTION
TAKEN BY THE SELLER OR NOT TAKEN BY THE SELLER, SUCH REFERENCE SHALL INCLUDE THE
RECEIPT OR POSSESSION OF SUCH INFORMATION OR DOCUMENTS BY, OR THE TAKING OF SUCH
ACTION OR THE NOT TAKING OF SUCH ACTION BY, EITHER THE SELLER OR ANY SERVICER
ACTING ON ITS BEHALF.
The Seller hereby represents and warrants, subject to the exceptions set
forth in Schedule C-1 hereto and Section 18 of this Agreement, with respect to
the Mortgage Loans that, as of the date hereinbelow specified or, if no such
date is specified, as of the date hereof:
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true, complete (in
accordance with the requirements of this Agreement and the Pooling and Servicing
Agreement) and correct in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, and in all events
no earlier than, as of the respective Due Dates of the Mortgage Loans in March
2003).
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to sell, transfer and assign each Mortgage Loan to, or at the
direction of, the Purchaser free and clear of any and all pledges, liens,
charges, security interests, participation interests and/or other interests and
encumbrances (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto). Subject to the completion of the names
and addresses of the assignees and endorsees and any missing recording
information in all instruments of transfer or assignment and endorsements and
the completion of all recording and filing contemplated hereby and by the
Pooling and Servicing Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance (except for certain servicing rights as provided in the
Pooling and Servicing Agreement, any permitted subservicing agreements and
servicing rights purchase agreements pertaining thereto). The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
due under any Mortgage Loan on the Due Date in March 2003 or on any Due Date in
the twelve-month period immediately preceding the Due Date for such Mortgage
Loan in March 2003 was 30 days or more delinquent, without giving effect to any
applicable grace period.
4. Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and enforceable first
priority lien upon the related Mortgaged Property, except as the enforcement of
the Mortgage may be limited as provided in the exceptions set forth in Paragraph
13 below, prior to all other liens and/or encumbrances (and there are no liens
or encumbrances that are pari passu with the lien of such Mortgage), except as
described on Schedule C-1 hereto and except for the following (collectively, the
"Permitted Encumbrances"): (a) the lien for current real estate taxes, water
charges, sewer rents and assessments not yet delinquent or accruing interest or
penalties; (b) covenants, conditions and restrictions, rights of way, easements
and other matters that are of public record and are referred to in the related
lender's title insurance policy (or, if not yet issued, referred to in a pro
forma title policy or title policy commitment meeting the requirements described
in Paragraph 8 below); (c) exceptions and exclusions specifically referred to in
the related lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or title policy commitment meeting the requirements
described in Paragraph 8 below); (d) other matters to which like properties are
commonly subject; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (f)
condominium declarations of record and identified in the related lender's title
insurance policy (or, if not yet issued, identified in a pro forma title policy
or title policy commitment meeting the requirements described in Paragraph 8
below); and (g) if such Mortgage Loan constitutes a Cross-Collateralized
Mortgage Loan, the lien of the Mortgage for another Mortgage Loan contained in
the same Cross-Collateralized Group. With respect to each Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate, materially
interfere with the security intended to be provided by the related Mortgage, the
current principal use of the related Mortgaged Property or the ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of the Mortgage for each Mortgage Loan,
executed and delivered in favor of the Trustee, is in recordable form (but for
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller) to validly and effectively
convey the assignor's interest therein and constitutes a legal, valid, binding
and, subject to the exceptions set forth in Paragraph 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases. The Mortgage File contains an assignment of
leases and rents (an "Assignment of Leases"), either as a separate instrument or
incorporated into the related Mortgage, which establishes and creates a valid,
subsisting and, subject to the exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Borrower
described therein, except that a license may have been granted to the related
Borrower to exercise certain rights and perform certain obligations of the
lessor under the relevant lease or leases, including, without limitation, the
right to operate the related leased property and subject as to priority to the
Permitted Encumbrances; and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not included
in a Mortgage, executed and delivered in favor of the Trustee is in recordable
form (but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) to validly and
effectively convey the assignor's interest therein and constitutes a legal,
valid, binding and, subject to the exceptions set forth in Paragraph 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any amendments or supplements thereto included in
the related Mortgage File) has not been impaired, waived, modified, altered,
satisfied, canceled, subordinated or rescinded, (b) neither the related
Mortgaged Property (nor any portion thereof that has a material value or is
material to the use or operation of the related Mortgaged Property) has been
released from the lien of such Mortgage and (c) the related Borrower has not
been released from its obligations under such Mortgage, in whole or in material
part. Except as described on Schedule C-1 hereto, no alterations, waivers,
modifications or assumptions of any kind with respect to any Mortgage Loan have
been given, made or consented to by or on behalf of the Seller since the later
of December 1, 2002 and the date of the origination of such Mortgage Loan. The
Seller has not taken any affirmative action that would cause the representations
and warranties of the related Borrower under the Mortgage Loan not to be true
and correct in any material respect.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, one or more engineering reports were prepared in connection with the
origination of such Mortgage Loan by an independent third-party engineering
firm, and except as set forth in such engineering report(s) or on Schedule C-1,
the related Mortgaged Property is, to the Seller's knowledge, in good repair,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance); provided that, if no engineer or
architect physically visited the related Mortgaged Property in connection with
preparing and delivering such engineering report, then the representation and
warranty made in this sentence shall not be qualified by "to the Seller's
knowledge". As of origination of such Mortgage Loan, there was no proceeding
pending, and subsequent to such date, the Seller has not received actual notice
of, any proceeding pending for the condemnation of all or any material portion
of the Mortgaged Property securing any Mortgage Loan, except as otherwise
described on Schedule C-1. If any of the engineering reports referred to above
in this Paragraph 7 revealed any material damage or material deferred
maintenance, then one of the following is true: (a) the repairs and/or
maintenance necessary to correct such condition have been completed in all
material respects; (b) an escrow of funds is required or a letter of credit was
obtained in an amount reasonably estimated to be sufficient to complete the
repairs and/or maintenance necessary to correct such condition; or (c) the
reasonable estimate of the cost to complete the repairs and/or maintenance
necessary to correct such condition represented no more than 2% of the value of
the related Mortgaged Property as reflected in an appraisal conducted in
connection with the origination of the subject Mortgage Loan. As of the date of
the origination of each Mortgage Loan: (a) all of the material improvements on
the related Mortgaged Property lay wholly within the boundaries and, to the
extent in effect at the time of construction, building restriction lines of such
property, except for encroachments that are insured against by the lender's
title insurance policy referred to in Paragraph 8 below or that do not
materially and adversely affect the value, marketability or current principal
use of such Mortgaged Property, and (b) no improvements on adjoining properties
encroached upon such Mortgaged Property so as to materially and adversely affect
the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the lender's title insurance policy
referred to in Paragraph 8 below.
8. Title Insurance. The lien of each Mortgage securing a Mortgage
Loan is insured by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (except that if such policy
is yet to be issued, such insurance may be evidenced by a "marked up" pro forma
policy or title commitment in either case marked as binding and countersigned by
the title company or its authorized agent, either on its face or by an
acknowledged closing instruction or escrow letter) in the original principal
amount of such Mortgage Loan after all advances of principal, insuring the
originator of the related Mortgage Loan, its successors and assigns (as the sole
insured) that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to the Permitted Encumbrances. Such Title
Policy (or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, the Seller has
made no claims thereunder and, to the Seller's knowledge, no prior holder of the
related Mortgage has made any claims thereunder and no claims have been paid
thereunder. The Seller has not, and to the Seller's knowledge, no prior holder
of the related Mortgage has, done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately following
the transfer and assignment of the related Mortgage Loan to the Trustee
(including endorsement and delivery of the related Mortgage Note to the Trustee
and recording of the related Assignment of Mortgage in favor of the Trustee in
the applicable real estate records), such Title Policy (or, if it has yet to be
issued, the coverage to be provided thereby) will inure to the benefit of the
Trustee without the consent of or notice to the insurer. Such Title Policy
contains no exclusion for any of the following circumstances, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available), (a) that the
related Mortgaged Property has access to a public road, and (b) that the area
shown on the survey, if any, reviewed or prepared in connection with the
origination of the related Mortgage Loan is the same as the property legally
described in the related Mortgage. Such Title Policy contains no exclusion
regarding the encroachment upon any material easements of any material permanent
improvements located at the related Mortgaged Property for which the grantee of
such easement has the ability to force removal of such improvement, or such
Title Policy affirmatively insures (unless the related Mortgaged Property is
located in a jurisdiction where such affirmative insurance is not available)
against losses caused by forced removal of any material permanent improvements
on the related Mortgaged Property that encroach upon any material easements.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
pending the satisfaction of certain conditions relating to leasing, repairs or
other matters with respect to the related Mortgaged Property), and there is no
obligation for future advances with respect thereto. If the related Mortgage
Loan Documents include any requirements regarding (a) the completion of any
on-site or off-site improvements and (b) the disbursement of any funds escrowed
for such purpose, and if those requirements were to have been complied with on
or before the date hereof, then such requirements have been complied with in all
material respects or such funds so escrowed have not been released except to the
extent specifically provided by the related Mortgage Loan Documents.
10. Mortgage Provisions. The Mortgage Note, Mortgage and Assignment
of Leases for each Mortgage Loan, together with applicable state law, contain
customary and, subject to the exceptions set forth in Paragraph 13 below,
enforceable provisions for commercial and multifamily mortgage loans such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby. The Mortgage Loan Documents for
each Mortgage Loan, subject to applicable law, provide for the appointment of a
receiver for the collection of rents or for the related mortgagee to enter into
possession to collect the rents if there is an event of default under such
Mortgage Loan.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable law
to serve as such, has either (i) been properly designated, has accepted such
designation and currently so serves or (ii) may be substituted in accordance
with the Mortgage and applicable law, and (b) no fees or expenses are payable to
such trustee by the Seller, the Purchaser or any transferee thereof except for
such fees and expenses (all of which are the obligation of the related Borrower
under the related Mortgage Loan Documents) as would be payable in connection
with a trustee's sale after default by the related Borrower or in connection
with any full or partial release of the related Mortgaged Property or related
security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgage
Loans identified on Schedule C-1, (a) an environmental site assessment meeting
the requirements of the American Society for Testing and Materials and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the Mortgaged Property, or an update of such an
assessment (or with respect to certain Mortgage Loans with an original principal
balance of $350,000 or less, a transaction screen meeting ASTM standards) and/or
a Phase II or other environment assessment supplemental to such assessment
and/or update, was performed by a licensed (to the extent required by applicable
state law) independent third-party environmental consulting firm with respect to
each Mortgaged Property securing a Mortgage Loan in connection with the
origination of such Mortgage Loan such that, except as set forth on Schedule
C-1, such assessment, transaction screen, update or supplement, as applicable,
is dated no earlier than twelve months prior to the date hereof, (b) a written
report of each such assessment, transaction screen, if any, update, if any, and
supplement, if any (collectively, an "Environmental Report"), has been delivered
to the Purchaser, and (c) either: (i) no such Environmental Report provides that
as of the date of the report there is a material violation of any applicable
environmental laws with respect to any circumstances or conditions relating to
the related Mortgaged Property; or (ii) if any such Environmental Report does
reveal any such circumstances or conditions with respect to the related
Mortgaged Property and the same have not been subsequently remediated in all
material respects, then one or more of the following are true--(A) one or more
parties not related to or including the related Borrower and collectively having
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects were identified as the responsible party or
parties for such condition or circumstance and such condition or circumstance
does not materially impair the value of the Mortgaged Property, (B) the related
Borrower was required to provide additional security reasonably estimated to be
adequate to cure the subject violation in all material respects, (C) if and to
the extent that such condition or circumstances can, based upon the
recommendation set forth in the subject Environmental Report, be remediated or
otherwise appropriately addressed in all material respects through the
implementation of an operations and maintenance plan, the related Borrower was
required to obtain and maintain an operations and maintenance plan, (D) the
related Borrower, or other responsible party, provided a "no further action"
letter or other evidence reasonably acceptable to a reasonably prudent
commercial or multifamily mortgage lender that applicable federal, state or
local governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or circumstance,
(E) such conditions or circumstances were investigated further and based upon
such additional investigation, an independent third-party environmental
consultant recommended no further investigation or remediation, (F) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan or $10,000, whichever is greater, (G) there exists an
escrow of funds reasonably estimated to be sufficient for purposes of effecting
such remediation, (H) the related Mortgaged Property is identified on Schedule
C-1 and insured under a policy of insurance subject to reasonable per occurrence
and aggregate limits and a reasonable deductible, against certain losses arising
from such circumstances and conditions or (I) a party with financial resources
reasonably estimated to be adequate to cure the subject violation in all
material respects provided a guaranty or indemnity to the related Borrower to
cover the costs of any required investigation, testing, monitoring or
remediation. To the Seller's knowledge, there are no significant or material
circumstances or conditions with respect to any Mortgaged Property not revealed
in any such Environmental Report, where obtained, or in any Borrower
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that render such
Mortgaged Property in material violation of any applicable environmental laws.
The Mortgage Loan Documents for each Mortgage Loan require the related Borrower
to comply in all material respects with all applicable federal, state and local
environmental laws and regulations. The Seller has not taken any affirmative
action which would cause the Mortgaged Property securing any Mortgage Loan not
to be in compliance with all federal, state and local laws pertaining to
environmental hazards. Each Borrower represents and warrants in the related
Mortgage Loan Documents generally to the effect that, except as set forth in
certain specified environmental reports and to the Borrower's knowledge, 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. Unless the related Mortgage Loan is identified on Schedule C-1, the
related Borrower (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller and its successors and assigns harmless from and against, or
otherwise be liable for, any and all losses resulting from a breach of
environmental representations, warranties or covenants given by the Borrower in
connection with such Mortgage Loan, generally including any and all losses,
liabilities, damages, injuries, penalties, fines, expenses and claims of any
kind or nature whatsoever (including without limitation, attorneys' fees and
expenses) paid, incurred or suffered by or asserted against, any such party
resulting from such breach.
13. Loan Document Status. Each Mortgage Note, Mortgage, and other
agreement executed by or on behalf of the related Borrower, or any guarantor of
non-recourse exceptions and environmental liability, with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law, but (subject to
the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations will not render such loan documents invalid as a whole or
substantially interfere with the mortgagee's realization of the principal
benefits and/or security provided thereby. There is no right of rescission,
offset, abatement or diminution or valid defense or counterclaim available to
the related Borrower with respect to such Mortgage Note, Mortgage or other
agreements that would deny the mortgagee the principal benefits intended to be
provided thereby. The Seller has no knowledge of any such rights, defenses or
counterclaims having been asserted.
14. Insurance. Except in certain cases, where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating and obligated
to maintain the insurance described in this paragraph, are allowed to
self-insure the related Mortgaged Properties, all improvements upon each
Mortgaged Property securing a Mortgage Loan are insured under a fire and
extended perils insurance policy included within the classification "All Risk of
Physical Loss" insurance (or the equivalent) policy in an amount at least equal
to the lesser of the outstanding principal balance of such Mortgage Loan and
100% of the insurable replacement cost of the improvements located on the
related Mortgaged Property, and if applicable, the related hazard insurance
policy contains appropriate endorsements to avoid the application of
co-insurance and does not permit reduction in insurance proceeds for
depreciation. Each Mortgaged Property securing a Mortgage Loan is the subject of
a business interruption or rent loss insurance policy providing coverage for at
least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income). If, based
solely on a flood zone certification or a survey of the related Mortgaged
Property, any portion of the improvements on a Mortgaged Property securing any
Mortgage Loan was, at the time of the origination of such Mortgage Loan, in an
area identified in the Federal Register by the Flood Emergency Management Agency
as a special flood hazard area (Zone A or Zone V) and flood insurance was
available, then a flood insurance policy meeting the requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement basis, (2) the
outstanding principal balance of such Mortgage Loan, and (3) the maximum amount
of insurance available under the applicable National Flood Insurance
Administration Program. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without ten (10) days' prior
written notice to the mortgagee; and no such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. Each Mortgaged
Property and all improvements thereon are also covered by comprehensive general
liability insurance in such amounts as are generally required by reasonably
prudent commercial or multifamily mortgage lenders for similar properties and
seismic insurance to the extent any Mortgaged Property has a probable maximum
loss in the event of an earthquake of greater than twenty percent (20%) of the
replacement value of the related improvements, calculated using methodology
acceptable to a reasonably prudent commercial or multifamily mortgage lender
with respect to similar properties in same area or earthquake zone. If the
Mortgaged Property for any Mortgage Loan is located in Florida or within 25
miles of the coast in Texas, Louisiana, Mississippi, Alabama, Georgia, North
Carolina or South Carolina, then such Mortgaged Property is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of such Mortgage Loan and (ii) 100% of the insurable
replacement cost of the improvements located on the related Mortgaged Property.
If any Mortgaged Property is, to the Seller's knowledge, a materially
non-conforming use or structure under applicable zoning laws and ordinances,
then, in the event of a material casualty or destruction, one or more of the
following is true: (i) such Mortgaged Property may be restored or repaired to
materially the same extent of the use or structure at the time of such casualty;
(ii) such Mortgaged Property is covered by law and ordinance insurance in an
amount customarily required by reasonably prudent commercial or multifamily
mortgage lenders; or (iii) the amount of hazard insurance currently in place and
required by the related Mortgage Loan Documents would generate proceeds
sufficient to pay off the subject Mortgage Loan. Additionally, for any Mortgage
Loan having a Cut-off Date Principal Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability rating from S&P, Xxxxx'x or Fitch of not less than
A-minus (or the equivalent), or from A.M. Best of not less than "A-minus:V" (or
the equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
Documents require that the related Borrower or a tenant of such Borrower
maintain insurance as described above or permit the Mortgagee to require
insurance as described above. Except under circumstances set forth in the
related Mortgage Loan Documents that would be reasonably acceptable to a prudent
commercial or multifamily mortgage lender or that would not otherwise materially
and adversely affect the security intended to be provided by the related
Mortgage, the Mortgage Loan Documents for each Mortgage Loan provide that
proceeds paid under any such casualty insurance policy will (or, at the lender's
option, will) be applied either to the repair or restoration of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage Loan Documents may entitle the related
Borrower to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Borrower holds a
leasehold interest in the related Mortgaged Property, the application of such
proceeds will be subject to the terms of the related Ground Lease (as defined in
Paragraph 18 below). To the Seller's knowledge, all insurance policies described
above are with an insurance carrier qualified to write insurance in the relevant
jurisdiction and all insurance described above is in full force and effect.
15. Taxes and Assessments. As of the date of origination of the
subject Mortgage Loan or January 31, 2003, whichever is later, there were no
(and, to the Seller's knowledge, there are no) delinquent property taxes or
water, sewer or other governmental assessments affecting any Mortgaged Property
securing a Mortgage Loan that are not otherwise covered by an escrow of funds
sufficient to pay such charge. For purposes of this representation and warranty,
real property taxes and water, sewer and other governmental assessments shall
not be considered delinquent until the date on which interest and/or penalties
would be payable thereon.
16. Borrower Bankruptcy. No Borrower under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report, an endorsement to the related Title Policy, or (when such would be
acceptable to a reasonably prudent commercial or multifamily mortgage lender) a
representation of the related Borrower at the time of origination of the subject
Mortgage Loan, or based on such other due diligence considered reasonable by
prudent commercial or multifamily mortgage lenders in the lending area where the
subject Mortgaged Property is located, the improvements located on or forming
part of, and the existing use of, each Mortgaged Property securing a Mortgage
Loan are in material compliance with applicable zoning laws and ordinances or
constitute a legal non-conforming use or structure (or, if any such improvement
does not so comply and does not constitute a legal non-conforming use or
structure, such non-compliance and failure does not materially and adversely
affect the value of the related Mortgaged Property as determined by the
appraisal performed in connection with the origination of such Mortgage Loan).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Borrower as a lessee under a ground lease (together with any and
all written amendments and modifications thereof and any and all estoppels from
or other agreements with the ground lessor, a "Ground Lease"), but not by the
related fee interest in the subject real property (the "Fee Interest"), then,
except as set forth on Schedule C-1:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the lessee thereunder
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 materially adversely affect the security provided by the related
Mortgage; to the extent required under such Ground Lease, the lessor under such
Ground Lease has been sent notice of the lien of the related Mortgage in
accordance with the provisions of such Ground Lease; and there has been no
material change in the terms of such Ground Lease since its recordation, with
the exception of material changes reflected in written instruments which are a
part of the related Mortgage File;
(b) The related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances, and such Ground Lease provides that
it shall remain superior to any mortgage or other lien upon the related Fee
Interest;
(c) The Borrower's interest in such Ground Lease is assignable to,
and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is required,
it has been obtained); provided that such Ground Lease has not been terminated
and all defaults, if any, on the part of the related lessee have been cured;
(d) Such Ground Lease is in full force and effect, and the Seller
has not received actual notice that any material default or any delinquent
rental payment has occurred under such Ground Lease;
(e) Such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee under such Mortgage Loan.
Furthermore, such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (or an original term plus
options exercisable by the holder of the related Mortgage) which extends not
less than twenty (20) years beyond the end of the amortization term of such
Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease
with the mortgagee under such Mortgage Loan upon termination of such Ground
Lease as a result of a rejection of such Ground Lease in a bankruptcy proceeding
involving the related Borrower unless the mortgagee under such Mortgage Loan
fails to cure a default of the lessee under such Ground Lease following notice
thereof from the lessor;
(i) Under the terms of such Ground Lease and the related Mortgage
Loan Documents, taken together, any casualty insurance proceeds, other than de
minimis amounts for minor casualties, with respect to the leasehold interest
will be applied either: (i) to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee under such Mortgage Loan or a
trustee appointed by it having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be viewed
as commercially unreasonable by a prudent commercial or multifamily mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon. Under the terms of
such Ground Lease and the related Mortgage Loan Documents, taken together, any
condemnation proceeds or awards in respect of a total or substantially total
taking will be applied first to the payment of the outstanding principal and
interest on the Mortgage Loan (except as otherwise provided by applicable law)
and subject to any rights to require the improvements to be rebuilt;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial or
multifamily mortgage lender in the lending area where the related Mortgaged
Property is located at the time of the origination of such Mortgage Loan;
(k) The lessor under such Ground Lease is not permitted under the
terms thereof, in the absence of an uncured default (after notice to the
mortgagee under such Mortgage Loan and the expiration of the applicable cure
period), to disturb the possession, interest or quiet enjoyment of the lessee in
the relevant portion of the Mortgaged Property subject to such Ground Lease for
any reason, or in any manner, which would materially adversely affect the
security provided by the related Mortgage; and
(l) Such Ground Lease provides that it may not be amended or
modified without the prior consent of the mortgagee under such Mortgage Loan and
that any such action without such consent is not binding on such mortgagee, its
successors or assigns.
19. Qualified Mortgage. Such Mortgage Loan is 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), and the related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code.
20. Advancement of Funds. The Seller has not (nor, to the Seller's
knowledge, has any prior holder of such Mortgage Loan) advanced funds, or
induced, solicited or knowingly received any advance of funds from a party other
than the owner of the related Mortgaged Property (or a tenant at or the property
manager of the related Mortgaged Property), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Borrower, has a shared appreciation feature,
provides for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property, or, except as identified on
Schedule C-1, provides for interest-only payments without principal amortization
for more than six months or for the negative amortization of interest, except
that, in the case of an ARD Loan, such Mortgage Loan provides that, during the
period commencing on or about the related Anticipated Repayment Date and
continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue, may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related Monthly Payment. Neither the Seller nor any affiliate thereof has
any obligation to make any capital contribution to the Borrower under the
Mortgage Loan or otherwise.
22. Legal Proceedings. To the Seller's knowledge, as of origination
of the Mortgage Loan, there were no, and to the Seller's knowledge, as of the
date hereof, there are no, pending actions, suits, litigation or other
proceedings by or before any court or governmental authority against or
affecting the Borrower (or any guarantor to the extent a reasonably prudent
commercial or multifamily, as applicable, mortgage lender would consider such
guarantor material to the underwriting of such Mortgage Loan) under such
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Borrower, guarantor or Mortgaged Property, would materially and adversely
affect the value of the Mortgaged Property as security for such Mortgage Loan,
the Borrower's ability to pay principal, interest or any other amounts due under
such Mortgage Loan or the ability of any such guarantor to meet its obligations.
23. Other Mortgage Liens. Except for Mortgage Loans secured by
residential cooperative properties and except as otherwise set forth on Schedule
C-1, none of the Mortgage Loans permits the related Mortgaged Property or any
direct controlling equity interest in the related Borrower to be encumbered by
any mortgage lien or, in the case of a direct controlling equity interest in the
related Borrower, a lien to secure any other debt, without the prior written
consent of the holder of the subject Mortgage Loan or the satisfaction of debt
service coverage or similar criteria specified therein. To the Seller's
knowledge, as of origination of the subject Mortgage Loan and as of the date
hereof, except as otherwise set forth on Schedule C-1, and except for liens
securing other Mortgage Loans, no Mortgaged Property securing the subject
Mortgage Loan was or is encumbered by any other mortgage liens (other than
Permitted Encumbrances) and no direct controlling equity interest in the related
Borrower was or is encumbered by a lien to secure any other debt. The related
Mortgage Loan Documents require the Borrower under each Mortgage Loan to pay all
reasonable costs and expenses related to any required consent to an encumbrance,
including reasonable legal fees and expenses and any applicable Rating Agency
fees, or would permit the subject mortgagee to withhold such consent if such
costs and expenses are not paid by a party other than such mortgagee.
24. No Mechanics' Liens. To the Seller's knowledge, as of the
origination of the Mortgage Loan and as of the date hereof: (i) each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was and is free and clear of any and all mechanics' and materialmen's liens that
are prior or equal to the lien of the related Mortgage and that are not bonded
or escrowed for or covered by title insurance, and (ii) no rights were or are
outstanding that under law could give rise to any such lien that would be prior
or equal to the lien of the related Mortgage and that is not bonded or escrowed
for or covered by title insurance.
25. Compliance with Usury Laws. Each Mortgage Loan complied with, or
was exempt from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the extent required by applicable law,
each Mortgage Loan requires the related Borrower to be qualified to do business,
and requires the related Borrower and the related Mortgaged Property to be in
material compliance with all regulations, licenses, permits, authorizations,
restrictive covenants and zoning and building laws, in each case to the extent
required by law or to the extent that the failure to be so qualified or in
compliance would have a material and adverse effect upon the enforceability of
the Mortgage Loan or upon the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby. To the Seller's knowledge, as of the date of origination of
each Mortgage Loan and based on any of: (i) a letter from governmental
authorities, (ii) a legal opinion, (iii) an endorsement to the related Title
Policy, (iv) a representation of the related Borrower at the time of origination
of such Mortgage Loan, (v) a zoning report from a zoning consultant, or (vi)
other due diligence that a reasonably prudent commercial or multifamily mortgage
lender would customarily perform in the origination of comparable mortgage
loans, the related Borrower was in possession of all material licenses, permits
and franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged Properties
with respect to such Mortgage Loans is at least equal to the total amount of
such Mortgage Loans.
28. Releases of Mortgaged Properties. Except as set forth on
Schedule C-1, no Mortgage Note or Mortgage requires the mortgagee to release all
or any material portion of the related Mortgaged Property from the lien of the
related Mortgage except upon: (i) payment in full of all amounts due under the
related Mortgage Loan or (ii) delivery of "government securities" within the
meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in connection with a defeasance
of the related Mortgage Loan; provided that the Mortgage Loans that are
Cross-Collateralized Mortgage Loans, and the other individual Mortgage Loans
secured by multiple parcels, may require the respective mortgagee(s) to grant
releases of material portions of the related Mortgaged Property or the release
of one or more related Mortgaged Properties upon: (i) the satisfaction of
certain legal and underwriting requirements, (ii) the payment of a release price
(in an amount that is, except as otherwise set forth on Schedule C-1, at least
equal to 125% of the allocated loan amount for the released property or parcel)
and prepayment consideration in connection therewith or (iii) the delivery of
substitute real estate collateral. No release or partial release of any
Mortgaged Property, or any portion thereof, expressly permitted pursuant to the
terms of any Mortgage Note or Mortgage would constitute a significant
modification of the related Mortgage Loan under Treas. Reg. Section
1.860G-2(b)(2). Notwithstanding the foregoing, any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in its underwriting of such Mortgage
Loan.
29. Defeasance. With respect to any Mortgage Loan that contains a
provision for any defeasance of mortgage collateral (a "Defeasance Loan"), the
related Mortgage Note or Mortgage provides that the defeasance option is not
exercisable prior to a date that is at least two (2) years following the Closing
Date and is otherwise in compliance with applicable statutes, rules and
regulations governing REMICs; requires prior written notice to the holder of the
Mortgage Loan of the exercise of the defeasance option and payment by the
Borrower of all related reasonable fees, costs and expenses as set forth below;
if the Borrower would continue to own assets in addition to the defeasance
collateral, requires, or permits the lender to require, the Mortgage Loan (or
the portion thereof being defeased) to be assumed by a single-purpose entity;
and requires counsel to provide a legal opinion that the Trustee has a perfected
security interest in the defeasance collateral prior to any other claim or
interest. In addition, each Mortgage Loan that is a Defeasance Loan permits
defeasance only with substitute collateral constituting "government securities"
within the meaning of Treas. Reg. Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or the
portion thereof being defeased) when due, and in the case of ARD Loans, assuming
the Anticipated Repayment Date is the Maturity Date. The Mortgage Loan Documents
for each Defeasance Loan provide that such defeasance collateral shall consist
solely of non-callable U.S. Treasury securities or other non-callable securities
backed by the full faith and credit of the United States government. To the
Seller's knowledge, defeasance under the Mortgage Loan is only for the purpose
of facilitating the disposition of a Mortgaged Property and not as part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages. With respect to each Defeasance Loan, the related Mortgage
Loan Documents provide that the related Borrower shall (a) 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, or (b)
provide all opinions required under the related Mortgage Loan Documents,
including, if applicable, a REMIC opinion and a perfection opinion and any
applicable rating agency letters confirming no downgrade or qualification of
ratings on any classes in the transaction. Additionally, for any Mortgage Loan
having a Cut-off Date Principal Balance equal to or greater than $19,900,000,
the Mortgage Loan or the related documents require confirmation from the Rating
Agency that exercise of the defeasance option will not cause a downgrade or
withdrawal of the rating assigned to any securities backed by the Mortgage Loan
and require the Borrower to pay any Rating Agency fees and expenses in
connection with defeasance.
30. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
31. Inspection. The Seller, an affiliate of the Seller, or a
correspondent in the conduit lending program of the Seller, inspected, or caused
the inspection of, each Mortgaged Property securing a Mortgage Loan within the
preceding twelve (12) months.
32. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and, to the
Seller's knowledge, there is no event, other than payments due but not yet 30
days' delinquent, that, with the passage of time or the giving of notice, or
both, would constitute a material default, breach, violation or event of
acceleration) under the Mortgage Note or Mortgage for any Mortgage Loan;
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that specifically pertains
to or arises out of the subject matter otherwise covered by any other
representation and warranty made by the Seller in this Exhibit C.
33. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property
or, except as set forth in Schedule C-1 hereto, any direct controlling equity
interest in the related Borrower, is transferred or sold, other than by reason
of: (i) if the related Mortgaged Property is a residential cooperative property,
transfers of stock of the Borrower in connection with the assignment of a
proprietary lease for a unit in the related Mortgaged Property by a
tenant-shareholder of the Borrower to other persons who by virtue of such
transfers become tenant-shareholders in the Borrower; and (ii) in the case of
other types of Mortgaged Properties, family or estate planning transfers,
transfers of less than a controlling interest in the Borrower, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Borrower,
transfers among affiliated Borrowers with respect to cross-collateralized
Mortgaged Loans or multi-property Mortgage Loans, transfers among co-Borrowers
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan. The related Mortgage Loan Documents require the Borrower
under each Mortgage Loan to pay all reasonable fees and expenses associated with
securing the consent or approval of the holder of the related Mortgage for all
actions pertaining to such "due-on-sale" clause (including an assumption of the
Mortgage Loan) requiring such consent or approval under the related Mortgage,
including the cost of counsel opinions relating to REMIC or other securitization
and tax issues, or require the payment of a specified fee or fees, including,
except as described on Schedule C-1 hereto, an assumption fee that may or may
not be applied to pay such fees and expenses.
34. Single Purpose Entity. Except for Mortgage Loans secured by
residential cooperative properties, each Mortgage Loan with an original
principal balance over $5,000,000.00 requires the related Borrower to be, at
least for so long as the Mortgage Loan is outstanding, and to the Seller's
knowledge, the related Borrower is, a Single-Purpose Entity. For this purpose,
"Single-Purpose Entity" means a person, other than an individual, which is
formed or organized solely for the purpose of owning and operating the related
Mortgaged Property or Properties; which does not engage in any business
unrelated to such Mortgaged Property or Properties and the financing thereof;
and whose organizational documents provide, or which entity represented and
covenanted in the related Mortgage Loan Documents, substantially to the effect
that such Borrower (i) does not and will not have any material assets other than
those related to its interest in such Mortgaged Property or Properties or the
financing thereof; (ii) does not and will not have any indebtedness other than
as permitted by the related Mortgage or other related Mortgage Loan Documents;
(iii) maintains its own books, records and accounts, in each case which are
separate and apart from the books, records and accounts of any other person; and
(iv) holds itself out as being a legal entity, separate and apart from any other
person. In addition, with respect to each Mortgage Loan with a Cut-off Date
Principal Balance of $20,000,000 or more, (a) the related Borrower's
organizational documents provide substantially to the effect that the Borrower
shall: conduct business in its own name; not guarantee or assume the debts or
obligations of any other person; not commingle its assets or funds with those of
any other person; prepare separate tax returns and financial statements, or if
part of a consolidated group, be shown as a separate member of such group;
transact business with affiliates on an arm's length basis; hold itself out as
being a legal entity, separate and apart from any other person; (b) such
organizational documents further provide substantially to the effect that: any
dissolution and winding up or insolvency filing for such entity is prohibited or
requires the consent of an independent director or member or the unanimous
consent of all partners, directors or members, as applicable; (c) such documents
may not be amended with respect to the Single-Purpose Entity requirements
without the approval of the mortgagee or Rating Agencies; and (d) the Borrower
shall have an outside independent director or member. The Seller has obtained,
with respect to each Mortgage Loan having a Cut-off Date Principal Balance of
$20,000,000 or more, in connection with its origination or acquisition thereof,
a counsel's opinion regarding non-consolidation of the Borrower in any
insolvency proceeding involving any other party. To the Seller's knowledge,
except with respect to Mortgage Loans secured by residential cooperative
properties, each Borrower has fully complied with the requirements of the
related Mortgage Note and Mortgage and the Borrower's organizational documents
regarding Single-Purpose Entity status. The organization documents of any
Borrower on a Mortgage Loan having a Cut-off Date Principal Balance of
$20,000,000 or more that is a single member limited liability company, provide
that the Borrower shall not dissolve or liquidate upon the bankruptcy,
dissolution, liquidation or death of the sole member. Any such single member
limited liability company Borrower is organized in jurisdictions that provide
for such continued existence, and the Seller has obtained, in connection with
its origination or acquisition of the subject Mortgage Loan, an opinion of such
Borrower's counsel confirming such continued existence and that the applicable
law provides that creditors of the single member may only attach the assets of
the member including the membership interests in the Borrower but not the assets
of the Borrower.
35. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
36. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots containing no other property, or is subject to an
endorsement under the related Title Policy insuring same, or an application for
the creation of separate tax lots complying in all respects with the applicable
laws and requirements of the applicable governing authority has been made and
approved by the applicable governing authority and such separate tax lots shall
be effective for the next tax year.
37. ARD Loans. Except as described on Schedule C-1, each Mortgage
Loan which is an ARD Loan commenced amortizing on its initial scheduled Due
Date, and provides that: (i) its Mortgage Rate will increase by at least two (2)
percentage points in connection with the passage of its Anticipated Repayment
Date; (ii) its Anticipated Repayment Date is not less than seven (7) years
following the origination of such Mortgage Loan; (iii) no later than the related
Anticipated Repayment Date, the related Borrower is required (if it has not
previously done so) 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 (iv) any net 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 scheduled principal and interest payment payable therefrom,
be net of budgeted and discretionary (servicer approved) capital expenditures.
38. Security Interests. Subject to the exceptions set forth in
Paragraph 13 above, the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan establish and create, and a
UCC financing statement has been filed and/or recorded in all places required by
applicable law for the perfection of (to the extent that the filing of such a
UCC financing statement can perfect such a security interest), a valid security
interest in the personal property granted under such Mortgage (and any related
security agreement or instrument), which in all cases includes elevators, if
any, and all Borrower-owned furniture, fixtures and equipment material to the
operation and use of the Mortgaged Property as presently operated, and if such
Mortgaged Property is a hotel operated by the related Borrower, then such
personal property constitutes such portion of the material personal property
required to operate the Borrower's business as the Seller considered appropriate
in light of its underwriting standards; 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 and security interest
on the collateral described therein (subject to the exceptions set forth in
Paragraph 13 above), which lien/security interest shall, in the case of (i)
elevators at all Mortgaged Properties having the same and (ii) all
Borrower-owned furniture, fixtures and equipment at Borrower operated hotel
properties, be a first priority lien/security interest except for certain
personal property subject to purchase money security interests and personal
property leases. In the case of any Mortgage Loan secured by a hotel, the
related loan documents contain such provisions as are necessary and UCC
Financing Statements have been filed as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with respect to
such Mortgaged Property (to the extent that such security interest can be
perfected by the filing of such UCC Financing Statements). The Purchaser or
Trustee or a designee thereof is authorized to file an assignment of each UCC
financing statement relating to the Mortgage Loan in the filing office in which
such financing statement was filed. Each Mortgage Loan and the related Mortgage
(along with any security agreement and UCC financing statement), together with
applicable state law, contain customary and enforceable provisions (subject to
the exceptions set forth in Paragraph 13 above) such as to render the rights and
remedies of the holders thereof adequate for the practical realization against
the personal property collateral described above of the principal benefits of
the security intended to be provided thereby.
39. Disclosure to Environmental Insurer and Other Matters. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impairment environmental insurance policy, then the Seller:
(a) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(b) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent required by such policy or to the extent the failure
to make any such disclosure or deliver any such report would materially and
adversely affect the Purchaser's ability to recover under such policy. If the
Mortgaged Property securing any Mortgage Loan is covered by a secured creditor
impairment environmental insurance policy, then: (x) all premiums for such
insurance have been paid; (y) such insurance is in full force and effect; and
(z) (i) an environmental report, a property condition report or an engineering
report was prepared that included an assessment for lead based paint ("LBP") (in
the case of a multifamily property built prior to 1978), asbestos containing
materials ("ACM") (in the case of any property built prior to 1981) and radon
gas ("RG") (in the case of a multifamily property) at such Mortgaged Property
and (ii) if such report disclosed the existence of a material and adverse LBP,
ACM or RG environmental condition or circumstance affecting such Mortgaged
Property, then (A) the related Borrower was required to remediate such condition
or circumstance prior to the closing of the subject Mortgage Loan, or (B) the
related Borrower was required to provide additional security reasonably
estimated to be adequate to cure such condition or circumstance, or (C) the
related Mortgage Loan documents require the related Borrower to establish an
operations and maintenance plan with respect to such condition or circumstance
after the closing of such Mortgage Loan. If the Mortgage Loan is listed on
Schedule C-1 and the environmental insurance for such Mortgage Loan is not a
secured creditor impairment environmental insurance policy but was required to
be obtained by the Borrower, then the holder of the Mortgage Loan is entitled to
be an additional insured under such policy, all premiums have been paid, such
insurance is in full force and effect and, to the Seller's knowledge, the
Borrower has made the disclosures and complied with the requirements of clauses
(a) and (b) of this Paragraph 39.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treas. Reg. Section 1.860G-1(b)(2).
41. Operating Statements. Except for Mortgage Loans secured by
residential cooperative properties and Mortgage Loans with an initial principal
balance less than $3,000,000, either of which may only require annual financial
statements, each Mortgage Loan requires the Borrower, in some cases only at the
request of the holder of the related Mortgage, to provide the owner or holder of
the related Mortgage with at least quarterly and annual operating statements,
rent rolls (if there is more than one tenant) and related information and annual
financial statements, which annual financial statements with respect to each
Mortgage Loan with an original principal balance greater than $20 million shall
be audited (or prepared and certified) by an independent certified public
accountant upon the request of the holder of the related Mortgage.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith.
43. Recourse. Other than Mortgage Loans which are secured by
residential cooperative properties (such Mortgage Loans being full recourse
loans to the related Borrower), each Mortgage Loan is non-recourse; provided
that, except as described on Schedule C-1 or for Mortgage Loans with a Cut-off
Date Principal Balance of less than $5,000,000, the Borrower and either a
principal of the Borrower or other individual guarantor, with assets other than
any interest in the Borrower, is liable in the event of (i) fraud or material
intentional misrepresentation, (ii) misapplication or misappropriation of rents,
insurance payments, condemnation awards or tenant security deposits, (iii)
violation of applicable environmental laws or breaches of environmental
covenants or (iv) the filing of a voluntary bankruptcy or insolvency proceeding
by the Borrower; and provided, further, that, with respect to clause (iii) of
the preceding proviso, an indemnification against losses related to such
violations or environmental insurance shall satisfy such requirement. No waiver
of liability for such non-recourse exceptions has been granted to the Borrower
or any such guarantor or principal by the Seller or anyone acting on behalf of
the Seller.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple or Leasehold Interests. The interest of the related
Borrower in the Mortgaged Property securing each Mortgage Loan includes a fee
simple and/or leasehold estate or interest in real property and the improvements
thereon.
46. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial or multifamily mortgage loan servicers
with respect to whole loans.
47. Originator's Authorization To Do Business. To the extent
required under applicable law, as of the Mortgage Loan's funding date and at all
times when it held such Mortgage Loan, the originator of each Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located, except where the failure to be so authorized does not
adversely affect the enforceability of such Mortgage Loan.
48. No Fraud In Origination. In the origination of the Mortgage
Loan, neither the originator nor any employee or agent of the Seller or the
originator, participated in any fraud or intentional material misrepresentation
with respect to the Borrower, the Mortgaged Property or any guarantor. To the
Seller's knowledge, no Borrower is guilty of defrauding or making an intentional
material misrepresentation to the Seller or originator with respect to the
origination of the Mortgage Loan, the Borrower or the Mortgaged Property.
49. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal was signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Borrower, the Mortgaged
Property or in any loan made on the security of the Mortgaged Property, and
whose compensation was not affected by the approval or disapproval of the
Mortgage Loan; to the Seller's knowledge, the appraisal and appraiser both
satisfied the requirements of the "Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board of the Appraisal
Foundation, all as in effect on the date the Mortgage Loan was originated.
50. Jurisdiction of Organization. Each Borrower under a Mortgage
Loan was organized under the laws of the United States or the laws of a
jurisdiction located within the United States, its territories and possessions.
51. Borrower Concentration. Except as otherwise specified on
Schedule C-1, no single Borrower or group of affiliated Borrowers is/are the
obligor(s) under any one or more Mortgage Loans with a Cut-off Date Principal
Balance of $50,000,000 or more.
52. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of the
Seller or its agents (which shall include the Master Servicer). All such escrow
deposits which are required for the administration and servicing of such
Mortgage Loan are being conveyed hereunder to the Purchaser.
53. Access. The Mortgaged Property securing each Mortgage Loan is
located on or adjacent to a public road or has access to an irrevocable easement
permitting ingress and egress.
SCHEDULE C-1
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in Exhibit C
attached hereto corresponding to the Paragraph numbers set forth below:
Exception to Paragraph 6:
940929812 FAIRFAX APARTMENTS. The completion date on the Deferred
Maintenance Escrow Agreement was changed from 1/25/2003 to 4/30/2003.
940930043 FLOWER HILL MALL. The completion date on the Outstanding
Issues Escrow Agreement was extended from 30 days from the funding date to 180
days.
940930610 CANOGA PARK CENTER. The monthly payment amount was corrected on
1/17/03.
Exception to Paragraph 12:
With respect to the following Mortgage Loans, no Phase I environmental site
assessment was performed and no Phase I environmental report was obtained;
however, such Mortgage Loans are covered by a secured creditor impairment
environmental insurance policy.
940927192 XXXXX XXXXXXX XXXXXXXXXX
000000000 0 XXXXXX XXXXXX
940930441 ORANGEWOOD PLACE APARTMENTS
940930995 KICKINGBIRD APARTMENTS
Exception to Paragraph 23:
None of the Mortgage Loans prohibits any direct controlling equity interest in
the related Borrower from being encumbered under any circumstances.
Exception to Paragraph 33:
None of the Mortgage Loans provides for acceleration of indebtedness if without
the consent of the holder of the related Mortgage Loan, (i) a direct controlling
equity interest in the related Borrower of 49% or less is transferred or sold or
(ii) a direct controlling equity interest in the related Borrower of any amount
is transferred by virtue of an involuntary change in ownership resulting from a
death or physical or mental disability.
Exception to Paragraph 34:
940930852 ONE MONTROSE METRO. The Borrower under this Mortgage Loan that
executed the Promissory Note is a single member limited liability company formed
in the state of Maryland. Such Borrower does not satisfy all of the requirements
set forth in the last two sentences of Paragraph 34.
Exception to Paragraph 41:
940929089 MOORESVILLE CONSUMER SQUARE. The Mortgage Loan requires the Borrower
to provide only annual financial statements and rent rolls.
Exceptions to Paragraph 43:
940937192 BELLE VILLAGE APARTMENTS. The co-Borrowers under this Mortgage Loan
are both individuals and there are no individual guarantors.
The following Mortgage Loans do not have individuals who are liable in the event
of (i) fraud or material intentional misrepresentation, (ii) misapplication or
misappropriation of rents, insurance payments, condemnation awards or tenant
security deposits, (iii) violations of applicable environmental laws or breaches
of environmental covenants or (iv) the filing of a voluntary bankruptcy or
insolvency proceeding by the Borrower.
940930691 FAIRFAX BUILDING
940930847 POTOMAC VALLEY BANK BUILDING
940930848 50-66 OFFICE BUILDING
940930849 ONE BELTWAY NORTH
940930850 SHADY GROVE TECH CENTER
940930852 ONE MONTROSE METRO
940930957 SOUTHERN HILLS TOWER
940930958 RICHMOND PLAZA BUILDING
940931010 CHASCO XXXXX APARTMENTS
940931062 COURT VILLAGE APARTMENTS
Exception to Paragraph 51:
Guardian Realty Investments LLLP is the principal of the Borrower for the
following Mortgage Loans having an aggregate Cut-off Date Principal Balance in
excess of $50,000,000.
940930841 PROFESSIONAL EQUITY BUILDING
940930847 POTOMAC VALLEY BANK BUILDING
940930848 50-66 OFFICE BUILDING
940930849 ONE BELTWAY NORTH
940930850 SHADY GROVE TECH CENTER
940930852 ONE MONTROSE METRO
EXHIBIT D-1
FORM OF CERTIFICATE OF THE SECRETARY OR AN ASSISTANT SECRETARY OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-CPN1
CERTIFICATE OF SECRETARY OF PNC BANK, NATIONAL ASSOCIATION
I, Xxxxxx X. Xxxxx, hereby certify that I am a duly appointed
Secretary of PNC Bank, National Association (the "Bank"), a national banking
association, and further certify on behalf of the Bank as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the
By-Laws of the Bank, which By-Laws are, on the date hereof, and have been
at all times since the formation of the Bank, in full force and effect.
2. Attached hereto as Exhibit B is a Certificate of Corporate
Existence of the Bank, as in full force and effect on the date hereof, and
no event has occurred since the date thereof which has affected the
authorization of the Bank to transact the business of banking under the
laws of the United States.
3. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Bank and his genuine
signature is set forth opposite his name.
NAME OFFICE SIGNATURE
---- ------ ---------
Xxxxxxx X. Xxxxxxx Senior Vice President _______________________
Xxxxx X. Xxxx Senior Vice President _______________________
Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Mortgage Loan Purchase Agreement dated as
of March 1, 2003 between Credit Suisse First Boston Mortgage Securities Corp.,
as purchaser, and the Bank, as seller.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of March ___, 2003.
By:
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
EXHIBIT A
BY-LAWS OF PNC BANK, NATIONAL ASSOCIATION
[See attached.]
EXHIBIT B
CERTIFICATE OF CORPORATE EXISTENCE OF PNC BANK, NATIONAL ASSOCIATION
[See attached.]
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-CPN1
CERTIFICATE OF PNC BANK, NATIONAL ASSOCIATION
In connection with the execution and delivery by PNC Bank, National
Association ("PNC Bank") of, and the consummation of the various transactions
contemplated by, that certain Mortgage Loan Purchase Agreement dated as of March
1, 2003 (the "Mortgage Loan Purchase Agreement"), between Credit Suisse First
Boston Mortgage Securities Corp. ("CSFBMSC"), as purchaser, and PNC Bank, as
seller, and that certain Indemnification Agreement dated as of February 27, 2003
(the "Indemnification Agreement" and, together with the Mortgage Loan Purchase
Agreement, the "Agreements"), between PNC Bank, CSFBMSC and Credit Suisse First
Boston LLC and the other Underwriters, the undersigned hereby certifies on
behalf of PNC Bank that (i) the representations and warranties of PNC Bank in
the Agreements are true and correct in all material respects at and as of the
date hereof (or, in the case of any particular representation or warranty set
forth in Exhibit C to the Mortgage Loan Purchase Agreement, as of such other
date provided for in such representation or warranty) with the same effect as if
made on the date hereof; provided, however, that in the case of the
representations and warranties set forth in Exhibit C to the Mortgage Loan
Purchase Agreement, such representations and warranties are subject to the
exceptions set forth in Schedule C-1 thereto and Section 18 thereof; and (ii)
PNC Bank has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part required under the Mortgage Loan
Purchase Agreement to be performed or satisfied at or prior to the date hereof.
Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Mortgage Loan Purchase Agreement.
[Signature on Following Page]
Certified this ______ day of March, 2003.
PNC BANK, NATIONAL ASSOCIATION
By: __________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
