EXHIBIT 4.5
Execution Copy
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
PNC BANK, NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of June 1, 2005
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TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date..................
Section 2. Closing Date Actions..........................................
Section 3. Conveyance of Mortgage Loans..................................
Section 4. Depositor's Conditions to Closing.............................
Section 5. Seller's Conditions to Closing................................
Section 6. Representations and Warranties of Seller......................
Section 7. Obligations of Seller.........................................
Section 8. Crossed Mortgage Loans........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance...................................................
Section 10. Representations and Warranties of Depositor...................
Section 11. Survival of Certain Representations, Warranties and
Covenants....................................................
Section 12. Transaction Expenses..........................................
Section 13. Recording Costs...............................................
Section 14. Notices.......................................................
Section 15. Examination of Mortgage Files.................................
Section 16. Successors....................................................
Section 17. Governing Law.................................................
Section 18. Severability..................................................
Section 19. Further Assurances............................................
Section 20. Counterparts..................................................
Section 21. Treatment as Security Agreement...............................
Section 22. Recordation of Agreement......................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for PNC Bank Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions with Respect to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of June 1, 2005, is made by and between PNC BANK, NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein or elsewhere in this Agreement, in the Pooling and Servicing
Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each Mortgage Loan to Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
against receipt by Seller of a trust receipt, pursuant to an arrangement between
Seller and the Trustee; provided, however, that item (p) in the definition of
Mortgage File (below) shall be delivered to the applicable Master Servicer for
inclusion in the Servicer File (defined below) with a copy delivered to the
Trustee for inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller by wire transfer in
immediately available funds to an account designated by Seller on or prior
to the Closing Date (or, by such other method as shall be mutually
acceptable to Depositor and Seller). The "Mortgage Loan Purchase Price"
paid by Depositor shall be equal to the amount that the Depositor and the
Seller have mutually agreed upon as the Seller's share of the net
securitization proceeds from the sale of the Publicly Offered Certificates
and the Private Certificates as set forth in the Closing Statement (which
amount includes, without limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under: (i) each of the
Mortgage Loans identified on the Mortgage Loan Schedule; and (ii) all property
of Seller described in Section 21(b) of this Agreement, including, without
limitation, (A) all scheduled payments of interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date and (B) all other payments
of interest, principal or yield maintenance charges received on or with respect
to the Mortgage Loans after the Cut-off Date, other than any such payments of
interest or principal or yield maintenance charges that were due on or prior to
the Cut-off Date. In connection with such transfer and assignment, the Seller
shall remit to the Depositor for deposit into the Collection Account that
portion of the Closing Date Deposit Amount that pertains to those Mortgage Loans
originated in June 2005 that do not have their first Monthly Payment due until
August 2005. The parties acknowledge that such assignment, conveyance and
transfer of the Mortgage Loans shall not be construed to limit any obligation of
Seller and any servicing rights of Midland Loan Services, Inc. under that
certain Servicing Rights Purchase Agreement dated as of June 1, 2005 between
Seller and Midland Loan Services, Inc. The Mortgage File for each Mortgage Loan
shall consist of the following documents:
(a) each original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the form
of Exhibit B hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements, assignments or allonges
showing a complete chain of endorsement or assignment from the Mortgage Loan
Originator either in blank or to the Seller, and further endorsed by the Seller,
on its face or by allonge attached thereto, without recourse, in blank or to the
order of the Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2005-C3, without recourse, representation or warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to the Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form (except
for any missing recording information and, if applicable, completion of the name
of the assignee), from the Seller (or the Mortgage Loan Originator), either in
blank or to "Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-C3";
(d) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to the Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording thereon;
(e) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), in recordable form (except for any
missing recording information and, if applicable, completion of the name of the
assignee), from the Seller (or the Mortgage Loan Originator), either in blank or
to "Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-C3";
(f) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to the Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), from the Seller (or the Mortgage Loan
Originator), either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3," which assignment
may be included as part of an omnibus assignment covering other documents
relating to the Mortgage Loan (provided that such omnibus assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence, when appropriate, of recording thereon or in the
form submitted for recording, in those instances where the terms or provisions
of the Mortgage, Note or any related security document have been modified or the
Mortgage Loan has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company or escrow instructions binding on the
title insurer irrevocably obligating the title insurer to issue such title
insurance policy) or interim binder that is marked as binding and countersigned
by the title company, insuring the priority of the Mortgage as a first lien on
the related Mortgaged Property, relating to such Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) certified or other copies of all UCC Financing Statements and
continuation statements which show the filing or recording thereof or copies
thereof in the form submitted for filing or recording sufficient to perfect (and
maintain the perfection of) the security interest held by the Mortgage Loan
Originator (and each assignee of record prior to the Trustee) in and to the
personalty of the Borrower at the Mortgaged Property that is described in the
related Mortgage or a separate security agreement, and original UCC Financing
Statement assignments in a form suitable for filing or recording, sufficient to
transfer such UCC Financing Statements to the Trustee;
(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including (as applicable) any Intercreditor
Agreement, mezzanine loan documents or preferred equity documents, together
with, if the Mortgage Loan is an A Loan, a copy of the Note for each related B
Loan;
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral control agreement
or lock-box control agreement, as applicable, and a copy of the UCC Financing
Statements, if any, submitted for filing with respect to the Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (together with UCC Financing Statement assignments in a form
suitable for filing or recording, sufficient to transfer such UCC Financing
Statements to the Trustee on behalf of the Certificateholders);
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan, provided that in connection with deliveries of the Mortgage File
to the Trust, such originals shall be delivered to the applicable Master
Servicer and copies thereof shall be delivered to the Trustee;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies thereof;
(r) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel, or a copy of
any of the foregoing;
(s) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties; and
(t) if applicable (and not for purposes of the Seller's delivery
obligations), the original or a counterpart of any post-closing agreement
relating to any modification, waiver or amendment of any term of any Mortgage
Loan (including fees charged the Borrower) required to be added to the Mortgage
File pursuant to Section 3.20(j) of the Pooling and Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to clauses (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (l) and (n)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, then the Seller: (i)
shall deliver, or cause to be delivered, to the Trustee a duplicate original or
true copy of such document certified by the applicable public recording or
filing office, the applicable title insurance company or the Seller to be a true
and complete duplicate original or copy of the original thereof submitted for
recording or filing; and (ii) shall deliver, or cause to be delivered, to the
Trustee either the original of such non-delivered document or instrument, or a
photocopy thereof (certified by the appropriate public recording or filing
office to be a true and complete copy of the original thereof submitted for
recording or filing), with evidence of recording or filing thereon (with a copy
to the applicable Master Servicer), within 365 days of the Closing Date, which
period may be extended up to two times, in each case for an additional period of
90 days (provided that the Seller, as certified in writing to the Trustee prior
to each such 90-day extension, is in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). Compliance
with this paragraph will satisfy the Seller's delivery requirements under this
Section 3 with respect to the subject document(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to clauses (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (l) and (n)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon, for any other reason, including without
limitation, that such non-delivered document has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document shall be deemed to have been included in the related
Mortgage File if a photocopy of such non-delivered document (with evidence of
recording or filing thereon and certified by the appropriate recording or filing
office to be a true and complete copy of the original thereof as filed or
recorded) is delivered to the Trustee (with a copy to the applicable Master
Servicer) on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver any UCC Financing Statement assignment with the filing information of
the related UCC Financing Statement with respect to any Mortgage Loan, solely
because such UCC Financing Statement has not been returned by the public filing
office where such UCC Financing Statement has been delivered for filing, the
Seller shall so notify the Trustee and shall not be in breach of its obligations
with respect to such delivery, provided that the Seller promptly forwards such
UCC Financing Statement to the Trustee (with a copy to the applicable Master
Servicer) upon its return, together with the related original UCC Financing
Statement assignment in a form appropriate for filing or recording.
The Seller may, at its sole cost and expense, but is not obligated
to, engage a third party contractor to prepare or complete in proper form for
filing or recording any and all assignments of Mortgage, assignments of
Assignments of Leases and assignments of UCC Financing Statements to the Trustee
to be delivered pursuant to clauses (c), (e), (k) and (n) above (collectively,
the "Assignments"), to submit the Assignments for filing and recording, as the
case may be, in the applicable public filing and recording offices and to
deliver those Assignments to the Trustee (with a copy to the applicable Master
Servicer) or its designee as those Assignments (or certified copies thereof) are
received from the applicable filing and recording offices with evidence of such
filing or recording indicated thereon. In the event the Seller engages a third
party contractor as contemplated in the immediately preceding sentence, the
rights, duties and obligations of the Seller pursuant to this Agreement remain
binding on the Seller; and, if the Seller does not engage a third party as
contemplated by the immediately preceding sentence, then the Seller will still
be liable for recording and filing fees and expenses of the Assignments as and
to the extent contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, the Seller
shall deliver the Servicer Files with respect to each of the Mortgage Loans to
the applicable Master Servicer under the Pooling and Servicing Agreement on
behalf of the Trustee in trust for the benefit of the Certificateholders. Each
such Servicer File shall contain all documents and records in the Seller's
possession relating to such applicable Mortgage Loans (including reserve and
escrow agreements, rent rolls, leases, environmental and engineering reports,
third-party underwriting reports, appraisals, surveys, legal opinions,
estoppels, financial statements, operating statements and any other information
provided by the respective Borrower from time to time, but excluding any draft
documents, attorney/client communications, which are privileged or constitute
legal or other due diligence analyses, and documents prepared by the Seller or
any of its Affiliates solely for internal communication, credit underwriting or
due diligence analyses (other than the underwriting information contained in the
related underwriting memorandum or asset summary report prepared by the Seller
in connection with the preparation of Exhibit A-1 to the Prospectus Supplement))
that are not required to be a part of a Mortgage File in accordance with the
definition thereof, together with copies of all instruments and documents which
are required to be a part of the related Mortgage File in accordance with the
definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller shall cause to be prepared, executed and delivered to the
issuer of each such letter of credit such notices, assignments and
acknowledgements as are required under such letter of credit to assign, without
recourse, to, and vest in, the Trustee (in care of the applicable Master
Servicer) (whether by actual assignment or by amendment of the letter of credit)
the Seller's rights as the beneficiary thereof and drawing party thereunder. The
designated beneficiary under each letter of credit referred to in the preceding
sentence shall be the Trustee (in care of the applicable Master Servicer).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
The Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of the Seller or any other name, to be transferred to the applicable Master
Servicer (or a Sub-Servicer at the direction of the applicable Master Servicer)
for deposit into Servicing Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans due after the Cut-off Date, minus
that portion of any such payment which is allocable to the period on or prior to
the Cut-off Date. All scheduled payments of principal due on or before the
Cut-off Date and collected after the Cut-off Date, together with the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the Mortgage and the contents of
the related Mortgage File shall be vested in Depositor and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of Seller as seller of the Mortgage Loans
hereunder, exclusive in each case of records and documents that are not required
to be delivered hereunder by Seller, shall immediately vest in Depositor. All
Monthly Payments, Principal Prepayments and other amounts received by Seller and
not otherwise belonging to Seller pursuant to this Agreement shall be sent by
Seller within three (3) Business Days after Seller's receipt thereof to the
applicable Master Servicer via wire transfer for deposit by the applicable
Master Servicer into the Collection Account.
Upon sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller shall, under
generally accepted accounting principles ("GAAP"), report its transfer of the
Mortgage Loans to the Depositor, as provided herein, as a sale of the Mortgage
Loans to the Depositor in exchange for the consideration specified in Section 2
hereof. In connection with the foregoing, upon sale of Certificates representing
at least 10% of the fair value of all the Certificates to unaffiliated third
parties, Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). With respect to
its treatment of the transfer of the Mortgage Loans to the Depositor under GAAP,
Seller shall at all times following the Closing Date cause all of its records
and financial statements and any relevant consolidated financial statements of
any direct or indirect parent to clearly reflect that the Mortgage Loans have
been transferred to the Depositor and are no longer available to satisfy claims
of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of the Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of the Seller required to be performed
by it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; all
of the representations and warranties of Seller under this Agreement (subject to
the exceptions in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; and no event shall have occurred with
respect to the Seller or any of the Mortgage Loans and related Mortgage Files
which, with notice or the passage of time, would constitute a material default
under this Agreement; and Depositor shall have received certificates to the
foregoing effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Depositor and the Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the proviso to the first sentence
of Section 1 of this Agreement, which shall have been delivered to and
held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its representations
and warranties set forth in Section 6 (subject to the exceptions in the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by the Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by the Depositor in order for the Depositor to
perform any of it obligations or satisfy any of the conditions on its part
to be performed or satisfied pursuant to any sale of Mortgage Loans by the
Depositor as contemplated herein.
(c) The Seller shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) If requested, the Seller shall have delivered to the Trustee, on
or before the Closing Date, five limited powers of attorney in favor of the
Trustee and the applicable Special Servicer empowering the Trustee and, in the
event of the failure or incapacity of the Trustee, the applicable Special
Servicer, to record, at the expense of the Seller, any Mortgage Loan Documents
required to be recorded and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files. If
requested by the Trustee or the applicable Special Servicer after the Closing
Date, the Seller shall deliver to the Trustee or the applicable Special
Servicer, as applicable, the powers of attorney described in the prior sentence
in form and substance reasonably acceptable to the requesting party.
(e) The Seller shall have paid or caused to be paid upfront all the
annual fees of each Rating Agency allocable to the Mortgage Loans.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(A) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(B) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
(c) The Depositor shall have performed or complied with all other
terms and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after Closing.
Section 6. Representations and Warranties of Seller. (a) Seller
represents and warrants to Depositor as of the date hereof, as follows:
(i) Seller is duly organized and is validly existing as a national
banking association in good standing under the laws of the United States
of America. Seller has conducted and is conducting its business so as to
comply in all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction over it,
except where the failure so to comply would not have a materially adverse
effect on the performance by Seller of this Agreement, and there is no
charge, investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans owned by it and to execute and
deliver this Agreement (and all agreements and documents executed and
delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all agreements
and documents executed and delivered by Seller in connection herewith).
Seller has duly authorized the execution, delivery and performance of this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith), and has duly executed and delivered this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each other
party thereto, constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, fraudulent transfer, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
organizational documents; (B) conflict with, result in a breach of, or
constitute a default or result in an acceleration under, any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound if compliance therewith is necessary (1) to ensure
the enforceability of this Agreement or (2) for Seller to perform its
duties and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C) conflict
with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of the Depositor to realize on the Mortgage Loans owned
by Seller.
(iv) Seller is solvent and the sale of the Mortgage Loans (1) will
not cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of the
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except for the filing or
recording of assignments and other Mortgage Loan Documents contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to transact business as a foreign corporation or licensed in one
or more states if such qualification or licensing is not necessary to
ensure the enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans owned by it constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to the Depositor
hereunder except for (A) the reimbursement of expenses as described herein
or otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions in the Exception Report, are true and
correct in all material respects as of the date hereof (or, in each case,
as of such other date specifically set forth in the subject representation
and warranty) with respect to the Mortgage Loans identified on Schedule
II.
(b) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Trustee as the holder of
the Mortgage Loan to be replaced, with respect to any replacement mortgage loan
(a "Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected
by a Material Defect or a Material Breach, pursuant to Section 7 of this
Agreement, each of the representations and warranties set forth in Exhibit A
hereto (subject to exceptions disclosed at such time) (references therein to
"Closing Date" being deemed to be references to the "date of substitution" and
references therein to "Cut-off Date" being deemed to be references to the "due
date for the subject Replacement Mortgage Loan during the month of
substitution"). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases but shall not inure to the benefit of any subsequent transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit A hereto and made by the
Seller with respect to any Mortgage Loan listed on Schedule II hereto, as of the
date hereof in Section 6(a)(xii) or as of the Closing Date pursuant to Section
4(b)(iii) (in either case, subject to the exceptions to such representations and
warranties set forth in the Exception Report), or with respect to any
Replacement Mortgage Loan, as of the date of substitution pursuant to Section
6(b) (in any such case, a "Breach"), or receives notice that (A) any document
required to be included in the Mortgage File related to any Mortgage Loan is not
in the Trustee's possession within the time period required herein or (B) such
document has not been properly executed or is otherwise defective on its face
(the circumstances in the foregoing clauses (A) and (B), in each case, a
"Defect" (including the "Defects" described below) in the related Mortgage
File), and if such Breach or Defect, as the case may be, materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein (any Breach or Defect that materially and adversely
affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, a "Material Breach" or a "Material Defect",
respectively), then the Seller shall, upon request of the Depositor, the
Trustee, the applicable Master Servicer or the applicable Special Servicer, not
later than 90 days from the receipt by the Seller of such request (subject to
the second succeeding paragraph, the "Initial Resolution Period"): (i) cure such
Material Breach or Material Defect, as the case may be, in all material
respects; (ii) repurchase the affected Mortgage Loan at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii) substitute,
in accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the applicable Master Servicer for deposit into the Collection Account any
Substitution Shortfall Amount (as defined in the Pooling and Servicing
Agreement) in connection therewith; provided, however, that if (i) such Material
Breach or Material Defect is capable of being cured but not within the Initial
Resolution Period, (ii) such Material Breach or Material Defect does not cause
the related Mortgage Loan not to be a "qualified mortgage" (within the meaning
of Section 860G(a)(3) of the Code), (iii) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) the Seller has delivered to the
Rating Agencies, the applicable Master Servicer, the applicable Special Servicer
and the Trustee an Officer's Certificate that describes the reasons that the
cure was not effected within the Initial Resolution Period and the actions that
it proposes to take to effect the cure and that states that it anticipates the
cure will be effected within the additional 90-day period, then the Seller shall
have an additional 90 days to cure such Material Defect or Material Breach. If
there exists a Breach of any representation or warranty that the related
Mortgage Loan Documents or any particular Mortgage Loan Document requires the
related Borrower to bear the costs and expenses associated with any particular
action or matter under such Mortgage Loan Document(s), then the Seller shall
cure such Breach within the Initial Resolution Period by reimbursing the Trust
Fund (by wire transfer of immediately available funds to the Collection Account)
the reasonable amount of any such costs and expenses incurred by the applicable
Master Servicer, the applicable Special Servicer, the Trustee or the Trust Fund
that are the basis of such Breach and have not been reimbursed by the related
Borrower; provided, however, that in the event such costs and expenses exceed
$10,000, the Seller shall have the option to either repurchase such Mortgage
Loan at the applicable Purchase Price, replace such Mortgage Loan and pay any
applicable Substitution Shortfall Amount or pay such costs and expenses. Except
as provided in the proviso to the immediately preceding sentence, Seller shall
remit the amount of such costs and expenses and upon its making such remittance,
Seller shall be deemed to have cured such Breach in all respects. Provided such
payment is made, the second preceding sentence describes the sole remedy
available to the Certificateholders and the Trustee on their behalf regarding
any such Breach, and Seller shall not be obligated to repurchase, substitute or
otherwise cure such Breach under any circumstances. With respect to any
repurchase of a Mortgage Loan hereunder or with respect to any substitution of
one or more Qualified Substitute Mortgage Loans for a Mortgage Loan hereunder,
(A) no such substitution may be made in any calendar month after the
Determination Date for such month; (B) scheduled payments of principal and
interest due with respect to the Qualified Substitute Mortgage Loan(s) after the
Due Date in the month of substitution, and scheduled payments of principal and
interest due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the applicable Master Servicer or
the applicable Special Servicer on behalf of the Trust on or prior to the
related date of repurchase or substitution shall be part of the Trust Fund; and
(C) scheduled payments of principal and interest due with respect to each such
Qualified Substitute Mortgage Loan on or prior to the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust after the related date of repurchase or substitution shall not be part of
the Trust Fund, and the Seller shall be entitled to receive such payments
promptly following receipt by the applicable Master Servicer or applicable
Special Servicer, as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by clause (i) of the definition of Mortgage
File in Section 3; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; (e) the absence from the
Mortgage File of any required original letter of credit (unless such original
has been delivered to the applicable Master Servicer and copy thereof is part of
the Mortgage File), provided that such Defect may be cured by any substitute
letter of credit or cash reserve on behalf of the related Borrower; or (f) the
absence from the Mortgage File of the original or a copy of any required ground
lease.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of (a) Seller's receipt of
notice to Seller of the discovery of such Defect or Breach by any party to the
Pooling and Servicing Agreement and (b) Seller's discovery of such Defect or
Breach (which period shall not be subject to extension).
If the Seller does not, as required by this Section 7, correct or
cure a Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then the Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
the Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless the Crossed Mortgage Loan Repurchase Criteria would be
satisfied if Seller were to repurchase or substitute for only the affected
Crossed Mortgage Loans as to which a Material Breach or Material Defect had
occurred without regard to this paragraph, and in the case of either such
repurchase or substitution, all of the other requirements set forth in the
Pooling and Servicing Agreement applicable to a repurchase or substitution, as
the case may be, would be so satisfied. In the event that the Crossed Mortgage
Loan Repurchase Criteria would be so satisfied, the Mortgage Loan Seller may
elect either to repurchase or substitute for only the affected Crossed Mortgage
Loan as to which the Material Defect or Material Breach exists or to repurchase
or substitute for all of the Crossed Mortgage Loans in the related Mortgage
Group. The determination of the applicable Special Servicer as to whether the
Crossed Mortgage Loan Repurchase Criteria have been satisfied shall be
conclusive and binding in the absence of manifest error. The Seller shall be
responsible for the cost of (and, if so directed by the applicable Special
Servicer, obtaining) any Appraisal required for the applicable Special Servicer
to determine if the Crossed Mortgage Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal has been approved by
the Seller (such approval not to be unreasonably withheld). For purposes of this
paragraph, a "Mortgage Group" is any group of Mortgage Loans identified as a
Mortgage Group on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will not
be obligated to repurchase or substitute for the entire Mortgage Loan if the
affected Mortgaged Property may, pursuant to the partial release provisions of
the related Mortgage Loan Documents, be released and the Mortgaged Property
remaining after such release satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) the Seller provides an opinion of counsel to
the effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) the Seller pays
(or causes to be paid) the applicable release price required under the Mortgage
Loan Documents and, to the extent not reimbursable out of the release price
pursuant to the related Mortgage Loan Documents, any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the applicable Special Servicer, the Trustee or
the Trust Fund in connection therewith, including any unreimbursed advances and
interest thereon made with respect to the Mortgaged Property that is being
released, and (iii) such cure by release of such Mortgaged Property is effected
within the time periods specified for cure of a Material Breach or Material
Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds (and,
in the case of a substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans), shall promptly release the related Mortgage File and
Servicer File (and all other documents pertaining to such Mortgage Loan
possessed by the Depositor or the Trustee, as applicable, or on its behalf, but
excluding any draft documents, attorney/client privileged communications and
documents prepared by the Depositor or the Trustee, as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan Documents and shall deliver to Seller any escrow
payments and reserve funds held by it, or on its behalf, with respect to such
repurchased or replaced Mortgage Loan.
It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
listed on Schedule II hereto constitute the sole remedies available to the
Depositor and its successors and assigns against Seller respecting any Breach or
Defect affecting such Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, the
Seller and the Depositor (on behalf of its successors and assigns) agree to
modify upon such repurchase or substitution, the related Mortgage Loan Documents
in a manner such that such affected Crossed Mortgage Loan repurchased or
substituted for by the Seller, on the one hand, and any related Crossed Mortgage
Loans still held by the Trustee, on the other, would no longer be
cross-defaulted or cross-collateralized with one another; provided, that the
Seller shall have furnished to the Trustee, at the Seller's expense, an opinion
of counsel that such modification shall not cause an Adverse REMIC Event;
provided, further, that if such opinion cannot be furnished, the Seller and the
Depositor hereby agree that such repurchase or substitution of only the affected
Crossed Mortgage Loans, notwithstanding anything to the contrary herein, shall
not be permitted (in which case, the Seller will be obligated to purchase or
substitute for all Crossed Mortgage Loans in the related Mortgage Group (defined
above)). Any reserve or other cash collateral or letters of credit securing the
affected Crossed Mortgage Loans shall be allocated between such Mortgage Loans
in accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof
(unless otherwise modified in accordance with the Pooling and Servicing
Agreement).
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto unless the
Seller elects to repurchase or substitute for such Mortgage Loan in accordance
with the second paragraph of Section 7. The Seller shall pay all reasonable
costs and expenses associated with a defeasance of a Mortgage Loan to the extent
such costs and expenses have not been paid by the related Borrower and such
Borrower is not required to pay them under the terms of the related Mortgage
Loan Documents in effect on or before the Closing Date, the payment of which
fees shall constitute the sole remedy of any breach by a Seller of
representation (liv)(F) set forth on Exhibit A hereto unless the Seller elects
to repurchase or substitute for such Mortgage Loan in accordance with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require the consent of, notice to or any filing with any
person, entity or governmental body, which has not been obtained or made by
Depositor, except where, in any of the instances contemplated by clause (i)
above or this clause (ii), the failure to do so will not have a material and
adverse effect on the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 9 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. Whether or not this Agreement is
terminated, both the Depositor and the Seller agree to pay the transaction
expenses incurred in connection with the transactions herein contemplated as set
forth in the Closing Statement.
Section 13. Recording Costs. Seller agrees to reimburse the Trustee
or its designee all recording and filing fees and expenses incurred by the
Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement, including
Assignments. In the event Seller elects to engage a third party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, shall be
deemed to have been duly given if personally delivered to or mailed, by
registered mail, postage prepaid, by overnight mail or courier service, or
transmitted by facsimile and confirmed by similar mailed writing, if to the
Depositor, addressed to the Depositor at 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy No.: (000) 000-0000 (with a
copy to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department, Telecopy No.:
(000) 000-0000, or such other address or telecopy number as may be designated by
the Depositor to the Seller in writing, or, if to the Seller, addressed to the
Seller at 10851 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries
or courier), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for United
States mail), Attention: Xxxxx Xxxx, Telecopy No.: (000) 000-0000, with a copy
to it at One PNC Plaza, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxxxxx Xxxxxx Xxxxx, Telecopy No.: (000) 000-0000, or such
other address or telecopy number as may be designated by the Seller to the
Depositor in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and permitted assigns, and nothing expressed in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such designated
persons and for the benefit of no other person; it being understood that the
rights of Depositor pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders, as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to such rights of Depositor
hereunder, provided that the Trustee shall have no right to further assign such
rights to any other Person. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assign
because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule or that constitute Replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in clause (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may prepare and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an opinion of
counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as of the date first
above written.
PNC BANK, NATIONAL ASSOCIATION, as
Seller
By:
------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
------------------------------------
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of June 1, 2005, between PNC Bank, National Association (the "Seller") and
Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
Capitalized terms used herein without definition have the meanings given them in
or by reference in the Agreement or, if not defined in the Agreement, in the
Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Borrower" means the borrower under a Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated June 22, 2005, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2005-C3,
issued in multiple classes.
"Closing Date" means June 29, 2005.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in June 2005 (or with
respect to Mortgage Loans which had closing/funding dates in June 2005, the
respective closing/funding dates of such Mortgage Loans).
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of the Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the proviso in Section 1 of the
Agreement).
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Offering Circular" means the confidential offering circular dated
June 22, 2005, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of June 1,
2005, among the Master Servicers, the Special Servicers, the Depositor, the
Trustee and the Certificate Administrator, including, without limitation, the
exhibits and schedules annexed thereto.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus, dated June 22, 2005, that is a
part of the Depositor's registration statement on Form S-3 (File No.
333-121904).
"Prospectus Supplement" means the Prospectus Supplement, dated June
22, 2005, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-AB, Class A-3, Class A-4, Class A-1-A, Class A-M, Class A-J, Class B,
Class C and Class D Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 thereof.
"Underwriters" means Credit Suisse First Boston LLC, PNC Capital
Markets, Inc., Greenwich Capital Markets, Inc. and Xxxxxxx, Xxxxx & Co.
"Underwriting Agreement" means the Underwriting Agreement, dated
June 22, 2005, between the Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
SCHEDULE OF PNC TRUST MORTGAGE LOANS
Loan # Property Name Address
4 Billerica Xxxx #0-0 000-0, 0, 0, 0 Xxxxxxxxx Xxxxxx
5 00 Xxxx Xxxxxx (Floors 2-11) 00 Xxxx Xxxxxx
6 Chicopee Big Y 0000 Xxxxxxxx Xxxx
0 Xxxxxxxxx Xxxx # 0 000-0 Xxxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxx #0 000-0 Xxxxxxxxx Xxxxxx
0 31 Milk St (USPS) 00 Xxxx Xxxxxx
13 2000 West Loop South Office Building 2000 West Loop South
16 Countryside Centre SEQ US Highway 19/Countryside Boulevard
23 Longford Plaza 0000-0000 Xxxx Xxxx Xxxxxxx Xxxx
28 Xxxxxxxxxx 5045 Xxxxxxxx
34 Bank of America Center - Naples 0000 Xxxxxxx Xxxxx North
36 Residence Inn - Scottsdale North 00000 Xxxxx Xxxxxxxxxx Xxxx
62 Seven Hills 000 Xxxxx Xxxxx Xxxxx
00 Xxx Xxxxx Xxxxx Center 00 Xxxxxxx Xxxxxx
80 Deer Creek Marketplace Shops 0000 Xxxx 000xx Xxxxxx
82 Residence Inn North - Colorado Springs 0000 Xxxxxxx Xxxxx
85 Xxxxx Cargo Self Storage 000 Xxxx Xxxxxxx Xxxxxx
86 Poulsbo Village Phase I Xxxxxxxxx Xxxxxxx Xxx xxx Xxxxx Xxxxx 000
00 English Garden Townhomes 00000 Xxxx 000xx Xxxxxx
00 Xxxxxxxxx - Xxxxxxxx Xxxxxxx 0000 Xxxxxxxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxx
100 Transgroup Building 00000 Xxxxx Xxxxxxxx
103 University of Phoenix Building 0000 Xxxx Xxxxx Xxxx
108 Steeple Chase Apartments 0000 Xxxxxxxxx Xxxxxx Xxxxx Road
122 Dollar Self Storage - Mesa 0000 Xxxx XxXxxxxxx Xxxx
Xxxx # Xxxx Xxxxx ZIP Mortgage Rate Net Mortgage Rate Original Balance
4 Xxxxxxxxx XX 00000 5.310% 5.2285% 18,320,000
5 Xxxxxx XX 00000 5.310% 5.2285% 16,147,000
6 Xxxxxxxx XX 00000 5.310% 5.2285% 6,560,000
7 Xxxxxxxxx XX 00000 5.310% 5.2285% 6,400,000
8 Xxxxxxxxx XX 00000 5.310% 5.2285% 4,800,000
9 Xxxxxx XX 00000 5.310% 5.2285% 2,513,000
13 Xxxxxxx XX 00000 5.640% 5.5685% 35,500,000
16 Xxxxxxxxxx XX 00000 5.240% 5.1685% 27,500,000
23 Xxx Xxxxx XX 00000 5.000% 4.9085% 18,560,000
28 Xxxxxxxx XX 00000 5.500% 5.4485% 15,000,000
34 Xxxxxx XX 00000 5.510% 5.4285% 13,500,000
36 Xxxxxxxxxx XX 00000 5.540% 5.4885% 12,100,000
62 Xxxxxxxxx XX 00000 5.230% 5.1485% 8,000,000
63 Xxxxxxxxxx XX 00000 5.500% 5.4485% 7,500,000
00 Xxxxxxxx Xxxx XX 00000 5.700% 5.5985% 5,280,000
82 Xxxxxxxx Xxxxxxx XX 00000 5.540% 5.4885% 5,200,000
85 Xxxx Xxxxxx XX 00000 5.760% 5.6785% 5,100,000
86 Xxxxxxx XX 00000 5.660% 5.5585% 5,100,000
90 Xxxxxx XX 00000 5.360% 5.2585% 4,800,000
93 Xxxxxxxx Xxxxxxx XX 00000 5.540% 5.4885% 4,750,000
98 Xxxxxxx Xxxx XX 00000 5.600% 5.5285% 4,450,000
100 Xxx Xxxxxxx XX 00000 5.860% 5.7785% 4,275,000
000 Xxxxxxxx XX 00000 5.510% 5.4085% 4,160,000
000 Xxxxxxxxx XX 00000 5.330% 5.2285% 3,868,000
000 Xxxx XX 00000 5.800% 5.6985% 3,176,000
Loan # Cut-off Date Principal Balance Rem term to stated maturity Maturity Date ARD Date Orig Amort Term
4 18,320,000 60 6/1/2010 N/A 360
5 16,147,000 60 6/1/2010 N/A 360
6 6,560,000 60 6/1/2010 N/A 360
7 6,400,000 60 6/1/2010 N/A 360
8 4,800,000 60 6/1/2010 N/A 360
9 2,513,000 60 6/1/2010 N/A 360
13 35,500,000 119 5/1/2015 N/A 360
16 27,500,000 85 7/1/2012 N/A 360
23 18,560,000 121 7/1/2015 N/A 360
28 15,000,000 83 5/1/2012 N/A 360
34 13,500,000 120 6/1/2015 N/A 360
36 12,100,000 121 7/1/2015 N/A 300
62 7,991,952 119 5/1/2015 N/A 360
63 7,492,937 119 5/1/2015 N/A 360
80 5,280,000 121 7/1/2015 N/A 360
82 5,200,000 121 7/1/2015 N/A 300
85 5,100,000 120 6/1/2015 N/A 360
86 5,095,386 119 5/1/2015 N/A 360
90 4,795,321 119 5/1/2015 N/A 360
93 4,750,000 121 7/1/2015 N/A 300
98 4,445,912 119 5/1/2015 N/A 360
100 4,271,325 119 5/1/2015 N/A 360
103 4,160,000 00 0/0/0000 X/X 000
000 3,868,000 121 7/1/2015 N/A 360
122 3,173,227 119 5/1/2015 N/A 360
Loan # Rem Amort Term Monthly Payment Unit/SF Interest Calculation Master Servicing Fee Rate
4 360 101,845.61 307,218 Actual/360 0.0100%
5 360 89,765.34 89,865 Actual/360 0.0100%
6 360 36,468.73 217,000 Actual/360 0.0100%
7 360 35,579.25 81,086 Actual/360 0.0100%
8 360 26,684.44 57,990 Actual/360 0.0100%
9 360 13,970.42 12,264 Actual/360 0.0100%
13 360 204,694.35 356,324 Actual/360 0.0100%
16 360 151,685.73 190,865 Actual/360 0.0100%
23 360 99,634.09 101,072 Actual/360 0.0100%
28 360 85,168.35 248 Actual/360 0.0100%
34 360 76,736.24 77,765 Actual/360 0.0100%
36 300 74,593.91 120 Actual/360 0.0100%
62 359 44,077.25 50,153 Actual/360 0.0100%
63 359 42,584.18 96,614 Actual/360 0.0100%
80 360 30,645.14 22,782 Actual/360 0.0100%
82 300 32,056.89 113 Actual/360 0.0100%
85 360 29,794.62 74,475 Actual/360 0.0100%
86 359 29,471.27 42,738 Actual/360 0.0100%
90 359 26,833.75 80 Actual/360 0.0100%
93 300 29,282.73 90 Actual/360 0.0100%
98 359 25,546.51 91,612 Actual/360 0.0100%
100 359 25,247.27 64,223 Actual/360 0.0100%
103 360 23,646.13 30,780 Actual/360 0.0100%
108 360 21,551.30 111 Actual/360 0.0100%
122 359 18,635.28 70,680 Actual/360 0.0100%
Loan # Due Date ARD Loan (Y/N) Lockout/Defeasance (Y/N) Earthquake Insurance (Y/N)
4 1 N Y N/A
5 1 N Y N/A
6 1 N Y N/A
7 1 N Y N/A
8 1 N Y N/A
9 1 N Y N/A
13 1 N Y N/A
16 1 N Y N/A
23 1 N N N/A
28 1 N N N/A
34 1 N Y N/A
36 1 N Y N/A
62 1 N N N/A
63 1 N N N/A
80 1 N Y N/A
82 1 N Y N/A
85 1 N Y Xx
00 0 X X Xx
00 0 X X X/X
00 1 N Y N/A
98 1 N N N/A
100 1 N Y No
103 1 N N N/A
108 1 N N No
122 1 N Y N/A
Loan # Environmental Insurance (Y/N) Ground Lease (Y/N) Letter of Credit (Y/N) Loan Group
4 No No N 1
5 No No Y 1
6 No No N 1
7 No No Y 1
8 No No N 1
9 No No N 1
13 No Yes N 1
16 No No N 1
23 No No N 1
28 No No N 2
34 No No N 1
36 No No N 1
62 No No N 1
63 No No N 1
80 No No N 1
82 No No N 1
85 No No N 1
86 No No N 1
90 No No N 2
93 No No N 1
98 No No N 1
100 No No N 1
103 No No N 1
108 No No N 2
122 No No N 1
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
1. Billerica Xxxx #0-0
00 Xxxx Xxxxxx (Floors 2-11)
Chicopee Big Y
Billerica Xxxx #0
Xxxxxxxxx Xxxx #0
31 Milk St. (USPS)
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Exception to Paragraph (xvii):
With respect to the following Mortgage Loans, if the related Mortgage Note is
not paid in full on its maturity date and the holder thereof exercises its
option to forbear from pursing its remedies, such Mortgage Loan provides that,
during the period commencing on or about the related maturity date and
continuing until the earlier of such Mortgage Loan being paid in full or the
holder terminating its forbearance, additional interest above the stated
interest rate applicable prior to the maturity date shall accrue and may be
compounded monthly and shall be payable only after all of the outstanding
principal of such Mortgage Loan is paid in full:
940951664 Gateway Shopping Center
940951477 00 Xxxx Xxxxxx
940951698 00 Xxxx Xxxxxx (XXXX)
940951699 Billerica Building #2
940951700 Billerica Building ##3-6
940951701 Billerica Building #7
940951702 Chicopee Big Y
940951696 University of Phoenix
940951099 Countryside Centre
940951304 Transgroup Building
940951538 0000 Xxxx Xxxx Xxxxx Xxxxxx Xxxxxxxx
940951713 Xxxxxxxxxx Apartments
Exceptions to Paragraph (xxviii):
None of the following Mortgage Loans with a Stated Principal Balance in excess
of $20,000,000 provides for acceleration of its unpaid principal balance if,
without the consent of the holder of the related Mortgage Loan, an 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:
940951538 0000 Xxxx Xxxx Xxxxx Xxxxxx Xxxxxxxx
940951099 Countryside Centre
940951713 Xxxxxxxxxx Apartments With respect to this Mortgage Loan, under
certain circumstances related to a loan default, the Delaware statutory trust
borrower may be terminated and the Mortgaged Property transferred to a newly
formed Delaware limited liability company. The form operating agreement for this
limited liability company has been approved by the Seller, and its members, who
have beneficial ownership interests in the borrower, are to possess the same
percentage ownership interests in the limited liability company that they
possessed in the trust. Additionally, so long as the co-trustees of the Delaware
statutory trust borrower remain persons or entities acceptable to the holder of
this Mortgage Loan and such holder receives prompt notice of the same, transfers
of beneficial ownership interests in the borrower may occur without such
holder's consent.
940951608 Poulsbo Village Phase I Under the Mortgage Loan Documents, this
Borrower has agreed to transfer the Mortgaged Property to a new borrower which
is a "single-purpose entity" and will assume the Mortgage Loan within 24 months
after the date of origination.
Exceptions to Paragraph (xxxiii):
940951764 English Garden Townhomes This Mortgage Loan is cross-collateralized
and cross-defaulted with a CBA B Loan which is not a Mortgage Loan being
included in the Trust Fund.
Exceptions to Paragraph (xxxvi):
940951764 English Garden Townhomes The Mortgage securing this Mortgage Loan also
secures a CBA B Loan in the original principal amount of $300,000 which is
subordinate to this Mortgage Loan.
940951546 Residence Inn North - Colorado Springs A principal of the Borrower
obtained a mezzanine loan in the amount of $2,650,000. The Seller and the holder
of the mezzanine financing have entered into an intercreditor agreement.
In the case of the following six cross-collateralized mortgage loans, MBC MEZZ,
LLC, the sole owner of MBC Equity Partners, LLC, which is the sole owner of the
six separate related borrowers obtained a mezzanine loan in the aggregate amount
of $4,500,000. The Seller and the holder of the mezzanine financing have entered
into an intercreditor agreement.
940951477 00 Xxxx Xxxxxx
940951698 00 Xxxx Xxxxxx (XXXX)
940951699 Billerica Building #2
940951700 Billerica Building ##3-6
940951701 Billerica Building #7
940951702 Chicopee Big Y
Exceptions to Paragraph (xxxviii):
940951713 Xxxxxxxxxx Apartments The Borrower incurred unsecured subordinate
bridge financing in the amount of $1,418,897 in connection with the closing of
this Mortgage Loan. The holder of the unsecured debt has executed and delivered
a subordination and standstill agreement in connection with such unsecured
financing.
Exceptions to Paragraph (xlviii):
940951099 Countryside Centre The Borrower is entitled to obtain a release of a
specified portion of the Mortgaged Property from the lien of the related
Mortgage, without the payment of any release price, upon the Borrower providing
acceptable evidence that the remainder of the Mortgaged Property satisfies
certain requirements set forth in the related Mortgage, including a specified
debt service coverage ratio.
With respect to the following Mortgage Loans which are cross-collateralized and
cross-defaulted with one another, the related Mortgage Loan Documents permit,
under certain circumstances, the release of certain Mortgaged Properties as
cross-collateral security for other Mortgage Loans in this group; provided,
however, that except in connection with the full defeasance of a particular
Mortgage Loan pursuant to the related Mortgage Loan documents, until such a
Mortgage Loan is paid in full, such provisions would not permit the release of
the Mortgaged Property which is indicated as the primary security for such
Mortgage Loan on the Mortgage Loan Schedule:
940951477 00 Xxxx Xxxxxx
940951698 00 Xxxx Xxxxxx (XXXX)
940951699 Billerica Building #2
940951700 Billerica Building ##3-6
940951701 Billerica Building #7
940951702 Chicopee Big Y
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
Except as disclosed in the Exception Report to this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) RESERVED.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, except for interests in servicing rights created
or granted under the Pooling and Servicing Agreement, subservicing agreements
and/or servicing rights purchase agreements being executed and delivered in
connection herewith;
(v) As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan Documents,
the Borrower, lessee and/or operator was in possession of all licenses, permits,
and authorizations then required for use of the Mortgaged Property which were
valid and in full force and effect as of the origination date;
(vi) Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related Borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of such signatory, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no valid offset, defense, counterclaim, or right of
rescission available to the related Borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(vii) Each related Assignment of Leases creates a valid first
priority collateral assignment of, or a valid first priority lien or security
interest in, certain rights under the related lease or leases, subject only to a
license granted to the related Borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or leases, including
the right to operate the related leased property, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); no person other than the related Borrower
owns any interest in any payments due under such lease or leases that is
superior to or of equal priority with the lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed by or for the benefit of the related
Borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and (B) each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are bonded over, escrowed for or insured against by a lender's title
insurance policy (as described below). A UCC Financing Statement has been filed
and/or recorded (or sent for filing or recording) in all places necessary to
perfect a valid security interest in the personal property necessary to operate
the Mortgaged Property; any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid and enforceable lien on property described
therein, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee and/or leasehold interest of the related Borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy, or its equivalent as adopted in the applicable jurisdiction, provided
that if such policy is yet to be issued, such insurance may be evidenced by a
"marked-up" commitment for title insurance, a pro forma or specimen title
insurance policy or signed escrow instructions, which in any case are binding on
the subject title insurer, insuring the Seller and its successors and assigns as
to such lien, subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property, (C) the exceptions (general and specific)
and exclusions set forth in such policy, none of which, individually or in the
aggregate, materially interferes with the current general use of the Mortgaged
Property or materially interferes with the security intended to be provided by
such Mortgage or with the related Borrower's ability to pay its obligations when
they become due or the value of the Mortgaged Property, (D) the rights of
tenants, as tenants only, under leases, including subleases, pertaining to the
related Mortgaged Property, (E) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan in the trust fund, the lien of
the Mortgage for that other Mortgage Loan, (F) if the related Mortgage Loan is a
CBA A Loan, the portion of the lien of the related Mortgage that secures the
related Companion Loan and (G) if the related Mortgaged Property is a unit in a
condominium, the related condominium declaration (items (A), (B), (C), (D), (E),
(F) and (G), collectively "Permitted Encumbrances"), and with respect to each
Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged Property,
the value of the related Mortgaged Property or the current ability of the
related Mortgaged Property to generate income sufficient to service such
Mortgage Loan; the premium for such policy was paid in full; such policy (or if
it is yet to be issued, the coverage to be afforded thereby) is issued by a
title insurance company licensed to issue policies in the state in which the
related Mortgaged Property is located (unless such state is Iowa) and is
assignable (with the related Mortgage Loan) to the Depositor and the Trustee
without the consent of or any notification to the insurer, and is in full force
and effect upon the consummation of the transactions contemplated by this
Agreement; no claims have been made under such policy and the Seller has not
undertaken any action or omitted to take any action, and has no knowledge of any
such act or omission, which would impair or diminish the coverage of such
policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related mortgage file;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted) or reserves or a letter of credit
have been established to cover the costs to remediate such damage or the
reasonable estimation of the costs to remediate such damage was no more than
$50,000, and, as of the closing date for each Mortgage Loan and, to the Seller's
knowledge, as of the date hereof, there is no proceeding pending for the total
or partial condemnation of such Mortgaged Property that would have a material
adverse effect on the use or value of the Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan, and no other person has been granted or conveyed the right to
service the Mortgage Loans or receive any consideration in connection therewith,
except as provided in the Pooling and Servicing Agreement, any permitted
subservicing agreements and/or servicing rights purchase agreements being
executed and delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required to be in the
possession or under the control of the Seller pursuant to each Mortgage Loan are
in the possession, or under the control, of the Seller or its agent and there
are no deficiencies (subject to any applicable grace or cure periods) in
connection therewith and all such escrows and deposits are being conveyed by the
Seller to the Depositor and identified as such with appropriate detail;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been received
by the Seller; such insurance names the lender under the Mortgage Loan and its
successors and assigns as a named or additional insured; each related Mortgage
Loan obligates the related Borrower to maintain all such insurance and, at such
Borrower's failure to do so, authorizes the lender to maintain such insurance at
the Borrower's cost and expense and to seek reimbursement therefor from such
Borrower;
(xxiv) There is no monetary default (other than payments due but not
yet 30 days or more past due), breach, violation or event of acceleration
existing under the related Mortgage Loan; and, to the Seller's knowledge, there
is no (A) non-monetary default, breach, violation or event of acceleration
existing under the related Mortgage Loan or (B) event (other than payments due
but not yet 30 days or more past due) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B) materially
and adversely affects the use or value of the Mortgage Loan or the related
Mortgaged Property; provided, however, that this representation and warranty
does not address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by any
other representation or warranty made by the Seller in any of the other
paragraphs of this Exhibit A; and provided, further that a breach by the
Borrower of any representation or warranty contained in any Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or event
of acceleration for purposes of this representation and warranty if the subject
matter of such representation or warranty contained in any Mortgage Loan
Document is also covered by any other representation or warranty made by the
Seller in this Exhibit A;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or (B)
as the enforcement of the Mortgage may be limited by bankruptcy, insolvency,
reorganization, moratorium, redemption or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). To the
Seller's knowledge, no Borrower is a debtor in a state or federal bankruptcy or
insolvency proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related Borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report (or, with respect to residential cooperative loans with an
original principal balance of $350,000 or less, a transaction screen process
report meeting ASTM standards) and, with respect to certain Mortgage Loans, a
Phase II environmental report, was conducted by a reputable environmental
consulting firm in connection with such Mortgage Loan, which report (or
transaction screen) did not indicate any material non-compliance with applicable
environmental laws or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous materials was
indicated in any such report, then at least one of the following statements is
true: (A) funds reasonably estimated to be sufficient to cover the cost to cure
any material non-compliance with applicable environmental laws or material
existence of hazardous materials have been escrowed, or a letter of credit in
such amount has been provided, by the related Borrower and held by the related
mortgagee; (B) an operations or maintenance plan has been required to be
obtained by the related Borrower; (C) the environmental condition identified in
the related environmental report was remediated or abated in all material
respects prior to the date hereof; (D) a no further action or closure letter was
obtained from the applicable governmental regulatory authority (or the
environmental issue affecting the related Mortgaged Property was otherwise
listed by such governmental authority as "closed"); (E) such conditions or
circumstances identified in the Phase I environmental report were investigated
further and based upon such additional investigation, an environmental
consultant recommended no further investigation or remediation; (F) a party with
financial resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related mortgage file. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's environmental insurance policy was obtained with respect to
each such Mortgage Loan and is a part of the related mortgage file. Each of such
environmental insurance policies is in full force and effect, the premiums for
such policies have been paid in full and the Trustee is named as an insured
under each of such policies. To the best of the Seller's knowledge, in reliance
on such environmental reports and except as set forth in such environmental
reports, each Mortgaged Property is in material compliance with all applicable
federal, state and local environmental laws, and to the best of the Seller's
knowledge, no notice of violation of such laws has been issued by any
governmental agency or authority, except, in all cases, as indicated in such
environmental reports or other documents previously provided to the Rating
Agencies; and the Seller has not taken any action which would cause the
Mortgaged Property to not be in compliance with all federal, state and local
environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders) or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related Borrower in connection
with the assignment of a proprietary lease for a unit in the related Mortgaged
Property by a tenant-shareholder of the related Borrower to other persons who by
virtue of such transfers become tenant-shareholders in the related Borrower,
each Mortgage Loan with a Stated Principal Balance of over $20,000,000 also
contains the provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the holder of
the Mortgage (and the Mortgage requires the mortgagor to pay all fees and
expenses associated with obtaining such consent), a majority interest in the
related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which the Seller has obtained title insurance against
losses arising therefrom or that do not materially and adversely affect the use
or value of such Mortgaged Property. No improvements on adjoining parcels
encroach onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage, the current use of the Mortgaged Property or
the related Borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the mortgage loan schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
(xxxi) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, and
the related Mortgage does not also encumber the related lessor's fee interest in
such Mortgaged Property, based upon the terms of the ground lease and any
estoppel received from the ground lessor, the Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest of the
lessee to be encumbered by the related Mortgage and does not restrict the
use of the related Mortgaged Property by such lessee, its successors or
assigns in a manner that would adversely affect the security provided by
the related Mortgage. To the best of Seller's knowledge, there has been
no material change in the terms of the ground lease since its
recordation, except by any written instruments which are included in the
related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is
not binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the lender) that extends
not less than 20 years beyond the stated maturity of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(E) The ground lease is assignable to the lender and its assigns
without the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full force and
effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any
existing condition which, but for the passage of time or giving of
notice, would result in a default under the terms of the ground lease;
(G) The ground lease or an ancillary agreement between the lessor
and the lessee, which is part of the Mortgage File, requires the lessor
to give notice of any default by the lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under the ground lease through legal proceedings, or to take
other action so long as the lender is proceeding diligently) to cure any
default under the ground lease which is curable after the receipt of
notice of any default, before the lessor may terminate the ground lease.
All rights of the lender under the ground lease and the related Mortgage
(insofar as it relates to the ground lease) may be exercised by or on
behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial mortgage lender. The lessor is not permitted, in absence of an
uncured default, to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee in the relevant portion of the Mortgaged
Property subject to the ground lease for any reason, or in any manner,
which would adversely affect the security provided by the related
Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied
either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses (except in any case where a provision entitling another party
to hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or to the payment
of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in respect of a
total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding
principal balance of the Mortgage Loan, together with any accrued
interest (except as provided by applicable law or in cases where a
different allocation would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of
the market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan). Until the principal balance and
accrued interest are paid in full, neither the lessee nor the lessor
under the ground lease will have an option to terminate or modify the
ground lease without the prior written consent of the lender as a result
of any casualty or partial condemnation, except to provide for an
abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related mortgage file that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized or cross-defaulted with such Mortgage Loans are being
transferred to the Depositor hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (1) and (2) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $4,000,000 require that the related Borrower be a single-purpose
entity (for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide substantially
to the effect that it is formed or organized solely for the purpose of owning
and operating one or more Mortgaged Properties, is prohibited from engaging in
any business unrelated to such property and the related Mortgage Loan, does not
have any assets other than those related to its interest in the related
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the related Mortgage Loan);
(xxxviii) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified therein and, except in connection with trade debt and
equipment financings in the ordinary course of Borrower's business, from
carrying any additional indebtedness, except, in each case, liens contested in
accordance with the terms of the Mortgage Loans or, with respect to each
Mortgage Loan having an original principal balance of less than $4,000,000, any
unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the Borrower to maintain flood insurance,
or at such Borrower's failure to do so, authorizes the Lender to maintain such
insurance at the cost and expense of the Borrower;
(xlii) To the knowledge of the Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law or may be substituted in
accordance with applicable law by the related mortgagee, and except in
connection with a trustee's sale after a default by the related Borrower, no
fees are payable to such trustee;
(xliii) RESERVED.
(xliv) To the knowledge of the Seller as of the date hereof, there
was no pending action, suit or proceeding, arbitration or governmental
investigation against any Borrower or Mortgaged Property, an adverse outcome of
which would materially and adversely affect such Borrower's ability to perform
under the related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the related
Borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to the Seller's knowledge, been
received from any person other than, or on behalf of, the related Borrower, for,
or on account of, payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Prospectus Supplement with
respect to the Crossed Mortgage Loans and Mortgage Loans secured by multiple
Mortgaged Properties, no Mortgage Loan requires the lender to release any
portion of the Mortgaged Property from the lien of the related Mortgage except
upon (A) payment in full or defeasance of the related Mortgage Loan, (B) the
satisfaction of certain legal and underwriting requirements that would be
customary for prudent commercial mortgage lenders, (C) releases of unimproved
out-parcels or (D) releases of portions of the Mortgaged Property which will not
have a material adverse effect on the use or value of the collateral for the
related Mortgage Loan;
(xlix) Except as provided in paragraphs (xxxi)(J) and (K) above, any
insurance proceeds or condemnation awards in respect of a casualty loss or
taking will be applied either to (A) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all casualty losses or
takings in excess of a specified amount or percentage that a prudent commercial
lender would deem satisfactory and acceptable, the lender (or a trustee
appointed by it) having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in any case where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender) or (B) to the
payment of the outstanding principal balance of such Mortgage Loan together with
any accrued interest thereon;
(l) Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the related Mortgaged Property and
each Form UCC-2 or UCC-3 assignment, if any, of such financing statement to the
Seller was, and each Form UCC-3 assignment, if any, of such financing statement
in blank which the Trustee or its designee is authorized to complete (but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is, in suitable form for filing in the
filing office in which such financing statement was filed;
(li) To the Seller's knowledge, (A) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the related Mortgaged Property. With respect to
any Mortgage Loan with a Stated Principal Balance as of the Closing Date of over
$10,000,000, if the related Mortgaged Property does not so comply, to the extent
the Seller is aware of such non-compliance, it has required the related Borrower
to obtain law and ordinance insurance coverage in amounts customarily required
by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the Borrower is required to provide an opinion of counsel
that the Trustee has a perfected security interest in such collateral prior to
any other claim or interest, (F) the Borrower is required to pay all Rating
Agency fees associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and opinions of
counsel, (G) with respect to any Significant Trust Mortgage Loan (as defined in
the Pooling and Servicing Agreement), the Borrower is required to provide an
opinion of counsel that such defeasance will not cause any REMIC created under
the Pooling and Servicing Agreement to fail to qualify as a REMIC for federal or
applicable state tax purposes and (H) with respect to any Significant Trust
Mortgage Loan (as defined in the Pooling and Servicing Agreement), the Borrower
must obtain Rating Agency confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade or
qualification of the then current rating of any class of Certificate rated by
such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder shall be liable to the Seller for any losses
incurred by the Seller due to (A) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the related Borrower;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
Borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the applicable Master Servicer; and (D) any
cash flow from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the extent such
net cash flow is in excess of the Monthly Payment payable therefrom, be net of
budgeted and discretionary (servicer approved) capital expenditures; and
(lvii) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same Borrower and to Borrowers
that are affiliates, accounted for more than 5.0% of the aggregate of the Stated
Principal Balances of all of the Mortgage Loans and all the mortgage loans sold
to the Depositor by Column Financial, Inc. ("Column"), National Consumer
Cooperative Bank ("NCB") and NCB, FSB ("NCBFSB") pursuant to those certain
Mortgage Loan Purchase Agreements each dated as of June 1, 2005 between the
Depositor and Column, NCB and NCBFSB, respectively.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_________________________________, being duly sworn, deposes and
says:
1. that he is an authorized signatory of PNC Bank, National
Association ("PNC");
2. that PNC is the owner and holder of a mortgage loan in the
original principal amount of $__________________ secured by a mortgage (the
"Mortgage") on the premises known as ___________________________ located in
_________________ ;
3. (a) that PNC, after having conducted a diligent investigation of
its records and files, has been unable to locate the following original note and
believes that said original note has been lost, misfiled, misplaced or destroyed
due to a clerical error:
a note in the original sum of $_____________ made by ____________ ,
to PNC Bank, National Association, under date of ______________ (the
"Note");
4. that the Note is now owned and held by PNC;
5. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
6. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except PNC; and
7. upon assignment of the Note by PNC to Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor") and subsequent assignment by the
Depositor to the trustee for the benefit of the holders of the Credit Suisse
First Boston Mortgage Securities Corp. Commercial Mortgage Pass-Through
Certificates, Series 2005-C3 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by PNC to the Trustee) PNC
covenants and agrees (a) promptly to deliver to the Trustee the original Note if
it is subsequently found, and (b) to indemnify and hold harmless the Trustee and
its successors and assigns from and against any and all costs, expenses and
monetary losses arising as a result of PNC's failure to deliver said original
Note to the Trustee.
PNC, NATIONAL ASSOCIATION,
By:
------------------------------------
Name:
Title:
Sworn to before me
this ________ day of [ ], 2005
