EXHIBIT 10.2
KeyBank Mortgage Loan Purchase Agreement
See attached
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of April 1, 2008
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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. Notice of Exchange Act Reportable Events......................
Section 16. Examination of Mortgage Files.................................
Section 17. Successors....................................................
Section 18. Governing Law.................................................
Section 19. Severability..................................................
Section 20. Further Assurances............................................
Section 21. Counterparts..................................................
Section 22. Treatment as Security Agreement...............................
Section 23. Recordation of Agreement......................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for KeyBank Trust Mortgage 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 April 1, 2008, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein 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"),
pursuant to an arrangement between Seller and the Trustee; provided, however,
that item (p) in the definition of Mortgage File (defined below) shall be
delivered to the 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 Purchasers 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
Purchasers, and the Initial Purchasers 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 Purchasers 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 22(b) of this Agreement, including, without
limitation, (A) all scheduled payments of interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date and (B) all other payments
of interest, principal or yield maintenance charges received on or with respect
to the Mortgage Loans after the Cut-off Date, other than any such payments of
interest or principal or yield maintenance charges that were due on or prior to
the Cut-off Date. The parties acknowledge that such assignment, conveyance and
transfer of the Mortgage Loans shall not be construed to limit any obligation of
Seller, any servicing rights of KeyCorp Real Estate Capital Markets, Inc. under
that certain Servicing Rights Purchase Agreement, dated as of April 1, 2008,
between Seller and KeyCorp Real Estate Capital Markets, Inc., or any related
servicing rights of any Primary Servicer contemplated by the Pooling and
Servicing Agreement. 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 (at the
direction of the Depositor given pursuant to this Agreement) by the Seller, on
its face or by allonge attached thereto, without recourse, either in blank or to
the order of the Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2008-C1, 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 2008-C1";
(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 2008-C1";
(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 2008-C1," which assignment
may be included as part of an omnibus assignment covering other documents
relating to the Mortgage Loan (provided that such omnibus assignment is
effective under applicable law);
(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
assign 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 or mezzanine 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 Agreements, mezzanine loan documents or preferred
equity documents), together with, if such Mortgage Loan is an A Loan, a copy of
the related 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 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 or a copy of any ground lease, ground lease
estoppels, and any amendments thereto;
(s) copies of franchise agreements, franchisor comfort letters and
all notices received from the related franchisor, if any, for hospitality
properties;
(t) the original or a copy of any property management agreement;
(u) a checklist of the related Mortgage Loan Documents included in
the Mortgage File for the subject Mortgage Loan; and
(v) 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 or instrument 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 Master Servicer), within 120 days of the Closing
Date, which period may be extended up to two times, in each case for an
additional period of 45 days (provided that the Seller, as certified in writing
to the Trustee prior to each such 45-day extension, is in good faith attempting
to obtain from the appropriate county recorder's office such original or
photocopy). Compliance with this paragraph will satisfy the Seller's delivery
requirements under this Section 3 with respect to the subject document(s) and
instrument(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 or instrument has been lost, the
delivery requirements of this Agreement shall be deemed to have been satisfied
and such non-delivered document or instrument shall be deemed to have been
included in the related Mortgage File if a photocopy of such non-delivered
document or instrument (with evidence of recording or filing thereon and
certified by the appropriate recording or filing office to be a true and
complete copy of the original thereof as filed or recorded) is delivered to the
Trustee (with a copy to the 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 or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, 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 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 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 Master Servicer (or, if applicable, to a Sub-Servicer at the direction of
the Master Servicer, with a copy to the Master Servicer) under the Pooling and
Servicing Agreement on behalf of the Trustee in trust for the benefit of the
Certificateholders. Each such Servicer File shall contain all documents and
records in the Seller's possession relating to such applicable Mortgage Loans
(including reserve and escrow agreements, cash collateral control agreements,
lock-box control 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 (within 30 days after the Closing Date) shall cause to be
prepared, executed and delivered to the issuer of each such letter of credit
such notices, assignments and acknowledgements as are required under such letter
of credit to assign, without recourse, to, and vest in, the Trustee (in care of
the 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 Master Servicer).
To the extent the Seller receives a notice on or after the Closing
Date with respect to a Mortgage Loan secured by a hospitality property for which
a franchisor comfort letter exists, the Seller shall promptly forward such
notice to the Trustee and advise the related franchisor of the Trustee's address
to which the franchisor shall deliver all future notices.
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 or at the direction
of the Master Servicer (or, if applicable, a Sub-Servicer at the direction of
the Master Servicer) for deposit into Servicing Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans 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 related Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the Master Servicer via wire transfer for deposit by the
Master Servicer into the Collection Account.
Upon sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller shall, under
generally accepted accounting principles ("GAAP"), report its transfer of the
Mortgage Loans to the Depositor, as provided herein, as a sale of the Mortgage
Loans to the Depositor in exchange for the consideration specified in Section 2
hereof. In connection with the foregoing, upon sale of Certificates representing
at least 10% of the fair value of all the Certificates to unaffiliated third
parties, Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). 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 set forth in the Exception Report) shall be true and correct in
all material respects as of the Closing Date; no event shall have occurred with
respect to 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 or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to 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 set forth
in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by 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 Special Servicer empowering the Trustee and, in the
event of the failure or incapacity of the Trustee, the Special Servicer,
to record, at the expense of the Seller, any Mortgage Loan Documents
required to be recorded and any intervening assignments with evidence of
recording thereon that are required to be included in the Mortgage Files.
If requested by the Trustee or the Special Servicer after the Closing
Date, the Seller shall deliver to the Trustee or the 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
(including, without limitation, payment of the Mortgage Loan Purchase Price)
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 Purchasers.
(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 set forth 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.
(xiii) The information set forth in any Disclosure Information (as
defined in the KeyBank Indemnification Agreement), as last forwarded to
each prospective investor at or prior to the date on which a contract for
sale was entered into with such prospective investor, (i) does not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (ii) complies with the
requirements of and contains all of the applicable information required by
Regulation AB (as defined in the KeyBank Indemnification Agreement); but
only to the extent that (i) such information regards the Mortgage Loans
and is contained in the Loan Detail (as defined in the KeyBank
Indemnification Agreement) or, to the extent consistent therewith, the
Diskette (as defined in the KeyBank Indemnification Agreement) or (ii)
such information regarding the Seller or the Mortgage Loans was contained
in the Confidential Offering Circular or the Prospectus Supplement under
the headings "Summary of Prospectus Supplement--Relevant
Parties/Entities--Sponsors and Mortgage Loan Sellers," "Summary of
Prospectus Supplement--The Underlying Mortgage Loans--Source of the
Underlying Mortgage Loans," "Risk Factors," "Description of the Sponsors
and Mortgage Loan Sellers" and "Description of the Underlying Mortgage
Loans--Significant Mortgage Loans" and such information does not represent
an incorrect restatement or an incorrect aggregation of correct
information regarding the Mortgage Loans contained in the Loan Detail.
(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 Document Defect or a Material Breach, pursuant to Section 7 of
this Agreement, each of the representations and warranties set forth in Exhibit
A hereto (subject to exceptions disclosed at such time) (references therein to
"Closing Date" being deemed to be references to the "date of substitution" and
references therein to "Cut-off Date" being deemed to be references to the "most
recent due date for the subject Replacement Mortgage Loan on or before the date
of substitution"). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If 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 Document Defect,"
respectively), then the Seller shall, upon request of the Depositor, the
Trustee, the Master Servicer or the 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 Document 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 Trust Mortgage Loans (as defined in the Pooling and Servicing
Agreement) for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the Master Servicer for deposit into the Collection Account any Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement) in
connection therewith; provided, however, that if (i) such Material Breach or
Material Document Defect is capable of being cured but not within the Initial
Resolution Period, (ii) such Material Breach or Material Document 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
Document Defect within the Initial Resolution Period and (iv) the Seller has
delivered to the Rating Agencies, the Master Servicer, the Special Servicer and
the Trustee an Officer's Certificate that describes the reasons that the cure
was not effected within the Initial Resolution Period and the actions that it
proposes to take to effect the cure and that states that it anticipates the cure
will be effected within the additional 90-day period, then the Seller shall have
an additional 90 days to cure such Material Document 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 Master
Servicer, the 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 that any such costs and expenses exceed $10,000, the
Seller shall have the option to either repurchase the related Mortgage Loan at
the applicable Purchase Price, replace such Mortgage Loan and pay any applicable
Substitution Shortfall Amount or pay such costs and expenses. Except as provided
in the proviso to the immediately preceding sentence, Seller shall remit the
amount of such costs and expenses and upon its making such remittance, Seller
shall be deemed to have cured such Breach in all respects. Provided such payment
is made, the second preceding sentence describes the sole remedy available to
the Certificateholders and the Trustee on their behalf regarding any such
Breach, and Seller shall not be obligated to repurchase, substitute or otherwise
cure such Breach under any circumstances. With respect to any repurchase of a
Mortgage Loan hereunder or with respect to any substitution of one or more
Qualified Substitute Trust 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 Trust 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 Master Servicer or the 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 Trust
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 Master Servicer or the
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 (or, if
applicable, any person effecting the related repurchase or substitution in the
place of the Seller) shall be entitled to receive such payments promptly
following receipt by the Master Servicer or Special Servicer, as applicable,
under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by clause (i) of the definition of Mortgage
File in Section 3; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; (e) the absence from the
Mortgage File of any required original letter of credit (unless such original
has been delivered to the 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.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Document Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed 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 Document 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 Document 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 Trust 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 Document 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 Trust 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 Document
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
Special Servicer as to whether the Crossed Trust 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 Special Servicer, obtaining) any Appraisal required for the
Special Servicer to determine if the Crossed Trust 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 Document 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 Master Servicer, the Special Servicer, the Trustee or the Trust
Fund in connection therewith, including any unreimbursed advances and interest
thereon made with respect to the Mortgaged Property that is being released, and
(iii) such cure by release of such Mortgaged Property is effected within the
time periods specified for cure of a Material Breach or Material Document 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 Trust 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 (or by the Master Servicer or
the Special Servicer on behalf of the Trust), as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in 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
below)). 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 (35) 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
(41) 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, at Xxx Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, 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 KeyBank
National Association c/o KeyBank Real Estate Capital, 000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Telecopy No.:
(000) 000-0000 (with a copy to, KeyBank National Association, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Telecopy No.: (000) 000-0000)
(with an additional copy to, Polsinelli Xxxxxxx Xxxxxxxx Suelthaus PC, 000 X.
00xx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxxxx,
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. Notice of Exchange Act Reportable Events. The Seller
hereby agrees to deliver to the Depositor and the Trustee any disclosure
information relating to any event reasonably determined in good faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form 10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in such form),
including, without limitation, the disclosure required under Items 1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use its best
efforts to deliver proposed disclosure language relating to any event described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form 8-K to the
Trustee and the Depositor within one (1) business day and in any event no later
than two (2) Business Days of the Seller becoming aware of such event and shall
provide disclosure relating to any other event reasonably determined by the
Depositor as required to be disclosed on Form 8-K, Form 10-D or Form 10-K within
two (2) Business Days following the Depositor's request for such disclosure
language. The obligation of the Seller to provide the above referenced
disclosure materials will terminate upon notice from the Depositor or the
Trustee that the Trustee has filed a Form 15 with respect to the Trust Fund as
to that fiscal year in accordance with Section 11.10(a) of the Pooling and
Servicing Agreement. The Seller hereby acknowledges that the information to be
provided by it pursuant to this Section will be used in the preparation of
reports meeting the reporting requirements of the Trust under Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as amended.
Section 16. 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 17. 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 18. 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 19. 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 20. 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 21. 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 22. 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 23. 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.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By: /s/Xxxxxxxxx XxXxxxxx
Name: Xxxxxxxxx XxXxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of April 1, 2008, between KeyBank National Association (the "Seller" or
"KeyBank") and Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor"). Capitalized terms used herein without definition have the meanings
given them in or by reference in the Agreement or, if not defined in the
Agreement, in the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" has the meaning given set forth in Section 3 of this
Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" has the meaning set forth in Section 7 of this Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated March 28, 2008, between Depositor and the Initial Purchasers.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2008-C1,
issued in multiple classes.
"Closing" has the meaning set forth in Section 2 of this Agreement.
"Closing Date" means April 18, 2008.
"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 April 2008 (or with
respect to Mortgage Loans which had closing/funding dates in April 2008, the
respective closing/funding dates of such Mortgage Loans).
"Defect" has the meaning set forth in Section 7 of this Agreement.
"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 this Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchasers" means Credit Suisse Securities (USA) LLC and
Xxxxxx Xxxxxxx & Co. Incorporated.
"Initial Resolution Period" has the meaning set forth in Section 7
of this Agreement.
"KeyBank Indemnification Agreement" means that certain
indemnification agreement, dated as of March 28, 2008, among the Underwriters,
the Initial Purchasers, KeyBank and the Depositor.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" has the meaning set forth in Section 7 of this
Agreement.
"Material Document Defect" has the meaning set forth in Section 7 of
this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the proviso in Section 1 of this
Agreement).
"Mortgage Group" has the meaning set forth in Section 7 of this
Agreement.
"Mortgage Loan" and "Mortgage Loans" have the respective meanings
set forth in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" has the meaning set forth in Recital II of
this Agreement.
"Offering Circular" means the confidential offering circular dated
March 28, 2008, 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 April
1, 2008, among the Master Servicer, the Special Servicer, the Depositor and the
Trustee, 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 March 18, 2008, that is a
part of the Depositor's registration statement on Form S-3 (File No.
333-141613).
"Prospectus Supplement" means the Prospectus Supplement, dated March
28, 2008, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-AB, Class A-3 and Class A-1-A 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.
"Trust Fund" has the meaning set forth in Recital II of this
Agreement.
"Underwriters" means Credit Suisse Securities (USA) LLC, Xxxxxx
Xxxxxxx & Co. Incorporated and Deutsche Bank Securities Inc.; provided that
Deutsche Bank will not act as an Underwriter with respect to the Class A-2
Certificates).
"Underwriting Agreement" means the Underwriting Agreement, dated
March 28, 2008, between the Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[See Attached]
Commercial Mortgage Pass-Through Certificates Series 2008-C1
Schedule II
Zip Mortgage
# Property Name Address City State Code Rate
-- ------------------------------------------ -------------------------------- ------------- ----- ----- --------
0 Xxxxxxxxx Xxxx Xxxx Xx. 0, Xxxxxxxxx 000.0 Xxxxxxxxx XX 00000 6.5700%
00 Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxx Xxxxx Xxxx XX 00000 6.15000%
14 R&F Amherst 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 6.3200%
00 Xxxx Xxxxx at Heathrow 0000 Xxxxxxx Xxxx 00X Xxxx Xxxx XX 00000 6.3400%
18 The Shoppes at Haydens Crossing 0000 Xxxxxx Xxx Xxxx Xxxxxxxx XX 00000 5.8500%
00 Xxxxxx Xxxx Xxxxx 0000-0000 Xxxxx Xxxxxx Xxxxxx XX 00000 5.7500%
00 Xxxxxxx Xxxxxxx Xxxxx I 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000 6.3600%
28 Quality Inn & Suites 0000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 6.9400%
29 Medical Mall of Abilene 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 7.1100%
30 R&F Furniture Showroom - Philadelphia 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000 6.3200%
00 Xxxxxxx Xxx - Xxxxxxxx Xxxx, XX 0000 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 6.4700%
32 Rolling Oaks 55, 77, 00 Xxxxxxx Xxxx Xxxxx Xxxxxxxx Xxxx XX 00000 5.8800%
38 Lawrence Southwind 12 0000 Xxxx Xxxxxx Xxxxxxxx XX 00000 5.9500%
45 University Center Professional Building II 00-000 Xxxxxx Xxxx Xxxxx Xxxx Xxxxxx XX 00000 5.5700%
00 Xxxxx Xxxxxx III 8050 and 0000 Xxxxx Xxxxxx Xxxxx Xxxxx XX 00000 6.1600%
54 R&F Cheektowaga CSC 0000 Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 6.3200%
Units/
Net Rem. Orig Rem. Sq. Ft./
Mortgage Original Cut-off Term to Maturity ARD Amort. Amort. Monthly Rooms/
# Rate Balance Balance (1) Maturity Date Date Term Term Payment Pads
-- -------- ----------- ----------- -------- --------- --------- ------ ------ -------- --------
6 6.5174% $34,000,000 $34,000,000 113 9/1/2017 N/A 360 360 $216,471 272,006
11 6.0974% $16,684,000 $16,684,000 113 9/1/2017 N/A 360 360 $101,644 182,664
14 6.2674% $12,000,000 $11,958,965 116 12/1/2037 12/1/2017 360 356 $74,433 112,264
17 6.2874% $11,625,000 $11,574,354 115 11/1/2017 N/A 360 355 $72,259 47,434
18 5.7974% $11,500,000 $11,500,000 117 1/1/2018 N/A 360 360 $67,843 67,847
23 5.6974% $9,050,000 $9,014,848 116 12/1/2017 N/A 360 356 $52,813 68,685
26 6.2574% $7,725,000 $7,725,000 116 12/1/2017 N/A 360 360 $48,118 45,535
28 6.8374% $7,500,000 $7,465,209 116 12/1/2017 N/A 300 296 $52,722 169
29 7.0074% $6,857,000 $6,857,000 58 2/1/2038 2/1/2013 360 360 $46,127 58,397
30 6.2674% $6,750,000 $6,726,918 116 12/1/2037 12/1/2017 360 356 $41,869 38,678
31 6.4174% $6,750,000 $6,721,427 115 11/1/2017 N/A 360 355 $42,532 119
32 5.8074% $6,650,000 $6,624,898 116 12/1/2017 N/A 360 356 $39,359 46,722
38 5.8974% $4,800,000 $4,726,156 109 5/1/2017 N/A 300 289 $30,780 42,497
45 5.4674% $4,000,000 $3,959,028 110 6/1/2017 N/A 360 350 $22,888 31,372
53 6.1074% $2,100,000 $2,100,000 00 0/0/0000 X/X 000 000 $12,807 13,120
54 6.2674% $2,002,000 $1,995,154 116 12/1/2037 12/1/2017 360 356 $12,418 85,593
Interest Accrual Period Primary Master Servicing Fee Payment ARD Trust
# (30/360 / Actual/360) Servicing Fee (Exclusive of Primary Servicing Fee) Date Mortgage Loan
-- ----------------------- ------------- ------------------------------------ ------- -------------
6 Actual/360 0.0300% 0.0200% 1 No
11 Actual/360 0.0300% 0.0200% 1 No
14 Actual/360 0.0300% 0.0200% 1 Yes
17 Actual/360 0.0300% 0.0200% 1 No
18 Actual/360 0.0300% 0.0200% 1 No
23 Actual/360 0.0300% 0.0200% 1 No
26 Actual/360 0.0800% 0.0200% 1 No
28 Actual/360 0.0800% 0.0200% 1 No
29 Actual/360 0.0800% 0.0200% 1 Yes
30 Actual/360 0.0300% 0.0200% 1 Yes
31 Actual/360 0.0300% 0.0200% 1 No
32 Actual/360 0.0500% 0.0200% 1 No
38 Actual/360 0.0300% 0.0200% 1 No
45 Actual/360 0.0800% 0.0200% 1 No
53 Actual/360 0.0300% 0.0200% 1 No
54 Actual/360 0.0300% 0.0200% 1 Yes
Earthquake Environmental Ground Letter of Loan
# Lockout/Defeasance Insurance (Yes/No/N/A) Insurance (Yes/No) Lease (Yes/No) Credit (Yes/No) Group
-- ------------------ ---------------------- ------------------ -------------- --------------- -----
6 Yes X/X Xx Xx Xx 0
00 Xx X/X No No No 1
14 No N/A No No No 1
17 Yes N/A No No No 1
18 Yes N/A No No No 1
23 Yes N/A No No No 1
26 No N/A No No No 1
28 Yes N/A No No No 1
29 No N/A No No Yes 1
30 No N/A No No No 1
31 Yes N/A No No No 1
32 No N/A No No No 1
38 Yes N/A No No No 1
45 Yes N/A No No No 1
53 Yes N/A No No No 1
54 No N/A No No No 1
# Loan Seller
-- ----------------------------
6 KeyBank National Association
11 KeyBank National Association
14 KeyBank National Association
17 KeyBank National Association
18 KeyBank National Association
23 KeyBank National Association
26 KeyBank National Association
28 KeyBank National Association
29 KeyBank National Association
30 KeyBank National Association
31 KeyBank National Association
32 KeyBank National Association
38 KeyBank National Association
45 KeyBank National Association
53 KeyBank National Association
54 KeyBank National Association
END
(1) Based on a Cut-off date in April 2008.
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Note: With respect to Loan No. 28/Quality Inn & Suites, the related Mortgaged
Property is located in Maryland and is owned by a guarantor of the Mortgage
Loan. Such guarantor executed and delivered a guaranty in connection with the
origination of the Mortgage Loan, and the Mortgage secured such guarantor's
obligations under that guaranty and constitutes an "indemnity deed of trust."
For certain representations and warranties set forth below, with respect to such
Mortgage Loan, statements regarding the Borrower relate to the guarantor as the
owner of the Mortgaged Property.
Exception to Representation (2):
Correspondent fees are payable with respect to the following loans:
(i) 28 Quality Inn & Suites;
(ii) 00 Xxxxxxx Xxxxxxx Xxxxx X;
(iii) 45 University Centre Professional Building II;
(iv) 32 Rolling Oaks; and
(v) 29 Medical Mall of Abilene.
Exception to Representation (14):
With respect to Loan No. 31/Hampton Inn - Xxxxxxxx City,
co-insurance is allowed with regard to windstorm insurance so long as the
coverage limit for said policy shall not be less than $9,900,000.00.
Exception to Representation (25):
With respect to Loan No. 28/Quality Inn & Suites, the related
Mortgage Loan Documents require the lender to release a specified parcel of the
Mortgaged Property which was not considered in the underwriting of the Mortgage
Loan upon the related Borrower's request and satisfaction of certain conditions
including: (i) evidence of compliance with applicable law; (ii) if required by
the operative documents with respect to a secondary market transaction, evidence
from any applicable rating agency that the proposed partial release would not
result in a qualification, reduction, downgrade or withdrawal of any rating or a
waiver from any such rating agency stating that it has declined to review the
partial release; and (iii) evidence that the release shall have no material
adverse operational impact upon the remaining Mortgaged Property.
With respect to Loan No. 17/Park Place at Heathrow, the related
Mortgage Loan Documents require the lender to release a specified parcel of the
Mortgaged Property upon the related Borrower's written request and satisfaction
of certain conditions including: (i) either (a) prepayment of a portion the
principal amount of the related Mortgage Loan including applicable prepayment
consideration if the release is consummated prior to the period in which
defeasance is permitted; or (b) partial defeasance during the period in which
defeasance is permitted; (ii) the loan to value ratio is no more than (a) 75% if
the release occurs prior to November 1, 2012, or (b) 70% if the release occurs
on or after November 1, 2012; (iii) the debt service coverage ratio of the
remaining Mortgaged Property is no less than (a) 1.20 to 1.00 if the release
occurs prior to November 1, 2012, or (b) 1.25 to 1.00 if the release occurs on
or after November 1, 2012; (iv) evidence of compliance with applicable law; (v)
if required by the operative documents with respect to a secondary market
transaction, evidence from any applicable rating agency that the proposed
partial release would not result in a qualification, reduction, downgrade or
withdrawal of any rating or a waiver from any such rating agency stating that it
has declined to review the partial release; and (vi) evidence that the release
shall have no material adverse operational impact upon the remaining Mortgaged
Property.
Exception to Representation (35):
With respect to Loan No. 38/Xxxxxxxx Southwind 12, indirect
controlling interests in the related Borrower may be transferred so long as
certain conditions are satisfied including: (i) rating agency confirmation and
(ii) a debt service coverage ratio of no less than 1.28 to 1.00.
With respect to Loan Nos. 00/Xxxxxxxx Xxxxx Office Building and
45/University Centre Professional Building II, future subordinate secured debt
is permitted provided certain conditions are satisfied, including, among others,
prior consent of the lender, a loan to value ratio not more than 80% and 65%
respectively, a debt service coverage ratio of not less than 1.25 to 1.00 and
1.40 to 1.00 respectively, and rating agency confirmation.
With respect to Loan No. 18/The Shoppes at Haydens Crossing,
interests in the sole member of the related Borrower ("Sole Member") may be
transferred without the consent of the holder of the Mortgage. Further, if an
entity is formed to be the sole member of the Sole Member, then interests in the
Sole Member shall no longer be freely transferable, but interests in the sole
member of the Sole Member may be transferred without the consent of the holder
of the Mortgage.
Exception to Representation (36):
With respect to Loan No. 38/Xxxxxxxx Southwind 12, Borrower and a
separate entity are liable to the holder of the Mortgage Loan for damages
arising in the case of fraud or willful misrepresentation by the Borrower, and
misappropriation of rents (following a default), insurance proceeds or
condemnation awards, but no natural person is liable for said items. Only
Borrower is liable for breaches of the environmental covenants in the Mortgage
Loan Documents.
With respect to Loan No. 45/University Centre Professional Building
II, only Borrower is liable to the holder of the Mortgage Loan for damages
arising in the case of fraud or material misrepresentation by the Borrower,
misappropriation of rents, insurance proceeds or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan Documents.
With respect to all Loans except Loan No. 38/Xxxxxxxx Southwind 12,
Borrower's and related guarantor's liability related to misrepresentation by the
Borrower is limited to material misrepresentation as opposed to willful
misrepresentation.
With respect to Loan No. 38/Xxxxxxxx Southwind 12, the liability
related to misappropriation of rents only applies to the period following a
default.
With respect to Loan No. 18/The Shoppes at Haydens Crossing,
Borrower and a separate entity are liable to the holder of the Mortgage Loan for
damages arising in the case of fraud or willful misrepresentation by the
Borrower, misappropriation of rents, insurance proceeds or condemnation awards,
and breaches of the environmental covenants in the Mortgage Loan Documents, but
no natural person is liable for said items.
With respect to Loan No. 29/Medical Mall of Abilene, Borrower, a
separate entity and a natural person are liable to the holder of the Mortgage
Loan for damages arising in the case of fraud or willful misrepresentation by
the Borrower, misappropriation of rents, insurance proceeds or condemnation
awards, and breaches of the environmental covenants in the Mortgage Loan
Documents, but until the separate entity ceases to exist, the holder of the
Mortgage may not demand payment or commence any action to enforce the liability
of the natural person.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
(1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is true and correct in all material respects as of the date of this
Agreement and as of the Cut-off Date.
(2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Depositor of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Depositor and has validly and effectively conveyed (or
caused to be conveyed) to the Depositor or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
Upon the consummation of the transactions contemplated by this Agreement, the
Seller will have validly and effectively conveyed to the Depositor all legal and
beneficial interest in and to each Mortgage Loan free and clear of any pledge,
lien, charge, security interest or other encumbrance. The sale of the Mortgage
Loans to the Depositor or its designee does not require the Seller to obtain any
governmental or regulatory approval or consent that has not been obtained. None
of the Mortgage Loan Documents restricts the Seller's right to transfer the
Mortgage Loan to the Depositor or to the Trustee.
(3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
(4) Lien; Valid Assignment. The Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable first priority lien upon
the related Mortgaged Property, prior to all other liens and encumbrances,
except for (a) the lien for current real estate taxes and assessments not yet
due and payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters that are of public record and/or are referred to in
the related lender's title insurance policy, (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy, (d) other
matters to which like properties are commonly subject, none of which matters
referred to in clauses (b), (c) or (d), individually or in the aggregate,
materially interferes with the security intended to be provided by such
Mortgage, the marketability or current use or operation of the Mortgaged
Property or the current ability of the Mortgaged Property to generate operating
income sufficient to service the Mortgage Loan debt and (e) if such Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan (the foregoing items (a) through (e) being
herein referred to as the "Permitted Encumbrances"). The related assignment of
such Mortgage executed and delivered in favor of the Trustee is in recordable
form and constitutes a legal, valid and binding assignment, sufficient to convey
to the assignee named therein all of the assignor's right, title and interest
in, to and under such Mortgage. Such Mortgage, together with any separate
security agreements, chattel mortgages or equivalent instruments, establishes
and creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder thereof in all of
the related Borrower's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged Property
operated as a hotel or an assisted living facility, the Borrower's personal
property includes all personal property that a prudent mortgage lender making a
similar Mortgage Loan would deem reasonably necessary to operate the related
Mortgaged Property as it is currently being operated. A Uniform Commercial Code
financing statement has been filed and/or recorded in all places necessary to
perfect a valid security interest in such personal property, to the extent a
security interest may be so created therein, and such security interest is a
first priority security interest, subject to any prior purchase money security
interest in such personal property and any personal property leases applicable
to such personal property. Notwithstanding the foregoing, no representation is
made as to the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions other
than the filing of Uniform Commercial Code financing statements are required in
order to effect such perfection.
(5) Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates a
valid, subsisting and, subject to the exceptions set forth in paragraph 13
below, enforceable first priority lien and first priority security interest in
the related Borrower's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases. If an Assignment of Leases exists with
respect to any Mortgage Loan (whether as a part of the related Mortgage or
separately), then the related Mortgage or related Assignment of Leases, subject
to applicable law, provides for, upon an event of default under the Mortgage
Loan, the appointment of a receiver for the collection of rents or for the
related lender to enter into possession to collect the rents or for rents to be
paid directly to the lender.
(6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule V to this Agreement), nor has any instrument been executed
that would effect any such satisfaction, cancellation, subordination, rescission
or release, in any manner that, in each case, materially adversely affects the
value of the related Mortgaged Property. None of the terms of any Note, Mortgage
or Assignment of Leases has been impaired, waived, altered or modified in any
respect, except by written instruments, all of which are included in the related
Mortgage File and none of the Mortgage Loans has been materially modified since
April 1, 2008.
(7) Condition of Property; Condemnation. With respect to (i) the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report issued after the first day of the month that is 18 months prior to the
Closing Date, each Mortgaged Property is, to the Seller's knowledge, free and
clear of any damage (or adequate reserves therefor have been established based
on the engineering report) that would materially and adversely affect its value
as security for the related Mortgage Loan and (ii) the Mortgaged Properties
securing the Mortgage Loans that were not the subject of an engineering report
18 months prior to the Closing Date as set forth on Schedule V to this
Agreement, each Mortgaged Property is in good repair and condition and all
building systems contained therein are in good working order (or adequate
reserves therefor have been established) and each Mortgaged Property is free of
structural defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for the
condemnation of all or any material portion of any Mortgaged Property. To the
Seller's knowledge (based on surveys and/or title insurance obtained in
connection with the origination of the Mortgage Loans), as of the date of the
origination of each Mortgage Loan, all of the material improvements on the
related Mortgaged Property that were considered in determining the appraised
value of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property, except for encroachments that are insured
against by the lender's Title Policy (as defined in paragraph (8)) referred to
herein or that do not materially and adversely affect the value or marketability
of such Mortgaged Property, and no improvements on adjoining properties
materially encroached upon such Mortgaged Property so as to materially and
adversely affect the value or marketability of such Mortgaged Property, except
those encroachments that are insured against by the Title Policy referred to
herein.
(8) Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or a comparable form as adopted in the applicable
jurisdiction) lender's title insurance policy, a pro forma policy or a marked-up
title insurance commitment (on which the required premium has been paid) which
evidences such title insurance policy (the "Title Policy") in the original
principal amount of the related Mortgage Loan after all advances of principal.
Each Title Policy insures that the related Mortgage is a valid first priority
lien on such Mortgaged Property, subject only to Permitted Encumbrances. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located. Such Title Policy contains no
exclusion for, or it affirmatively insures access to a public road.
(9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement that must be satisfied as a condition to
disbursements of any funds escrowed for such purpose have been complied with on
or before the Closing Date, or any such funds so escrowed have not been
released.
(10) Mortgage Provisions. The Note or Mortgage for each Mortgage Loan,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
(11) Trustee under Deed of Trust. If any Mortgage is a deed of trust, (1)
a trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (2) no fees or expenses are
payable to such trustee by the Seller, the Depositor or any transferee thereof
except in connection with a trustee's sale after default by the related Borrower
or in connection with any full or partial release of the related Mortgaged
Property or related security for the related Mortgage Loan.
(12) Environmental Conditions.
(i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment after the
first day of the month that is 18 months prior to the Closing Date, an
environmental site assessment, or an update of a previous such report, was
performed with respect to each Mortgaged Property in connection with the
origination or the acquisition of the related Mortgage Loan, a report of
each such assessment (or the most recent assessment with respect to each
Mortgaged Property) (an "Environmental Report") has been delivered to the
Depositor, and the Seller has no knowledge of any material and adverse
environmental condition or circumstance affecting any Mortgaged Property
that was not disclosed in such report. Each Mortgage requires the related
Borrower to comply with all applicable federal, state and local
environmental laws and regulations. Where such assessment disclosed the
existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to
the Borrower was identified as the responsible party for such condition or
circumstance or (ii) environmental insurance covering such condition was
obtained or must be maintained until the condition is remediated or (iii)
the related Borrower was required either to provide additional security
that was deemed to be sufficient by the originator in light of the
circumstances and/or to establish an operations and maintenance plan or
(iv) 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. In connection
with the origination of each Mortgage Loan, each environmental consultant
has represented in such Environmental Report or in a supplement letter
that the environmental assessment of the applicable Mortgaged Property was
conducted utilizing generally accepted Phase I industry standards using
the American Society for Testing and Materials (ASTM) Standard Practice E
1527-00.
(ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment
meeting ASTM Standards after the first day of the month that is 18 months
prior to the Closing Date as set forth on Schedule V to this Agreement,
(i) no Hazardous Material is present on such Mortgaged Property such that
(1) the value, use or operation of such Mortgaged Property is materially
and adversely affected or (2) under applicable federal, state or local
law, (a) such Hazardous Material could be required to be eliminated at a
cost materially and adversely affecting the value of the Mortgaged
Property before such Mortgaged Property could be altered, renovated,
demolished or transferred or (b) the presence of such Hazardous Material
could (upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security
interest therein, to liability for the cost of eliminating such Hazardous
Material or the hazard created thereby at a cost materially and adversely
affecting the value of the Mortgaged Property, and (ii) such Mortgaged
Property is in material compliance with all applicable federal, state and
local laws pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on
the value of such Mortgaged Property and neither Seller nor, to Seller's
knowledge, the related Borrower or any current tenant thereon, has
received any notice of violation or potential violation of any such law.
"Hazardous Materials" means gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, and any other substance, material or waste as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law, ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Resource Conservation and Recovery Act, as amended (42
U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control Act as
amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act as amended (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
(13) Loan Document Status. Each Note, Mortgage, Assignment of Leases and
other agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Borrower is the legal, valid and binding obligation
of the maker thereof (subject to any non-recourse provisions contained in any of
the foregoing agreements and any applicable state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and there is
no valid defense, counterclaim or right of offset or rescission available to the
related Borrower with respect to such Note, Mortgage or other agreement.
(14) Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of the
date of origination by the originator of such Mortgage Loan consistent with its
normal commercial mortgage lending practices, against other risks insured
against with respect to similarly situated properties in the locality of the
Mortgaged Property (so-called "all risk" coverage) in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the improvements located at the Mortgaged Property, and
contains no provisions for a deduction for depreciation, and not less than the
amount necessary to avoid the operation of any co-insurance provisions with
respect to the Mortgaged Property; (b) a business interruption or rental loss
insurance policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area identified by
the Federal Emergency Management Agency as having special flood hazards and the
Federal Emergency Management Agency requires flood insurance to be maintained);
and (d) a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, for properties of similar
types and in any event not less than $1 million per occurrence. Such insurance
policy contains a standard mortgagee clause that names the lender as an
additional insured in the case of liability insurance policies and as a loss
payee in the case of property insurance policies and requires prior notice to
the holder of the Mortgage of termination or cancellation. No such notice has
been received, including any notice of nonpayment of premiums, that has not been
cured. Each Mortgage obligates the related Borrower to maintain all such
insurance and, upon such Borrower's failure to do so, authorizes the holder of
the Mortgage to maintain such insurance at the Borrower's cost and expense and
to seek reimbursement therefor from such Borrower. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or repair of
the related Mortgaged Property, (b) to the restoration or repair of the related
Mortgaged Property, with any excess insurance proceeds after restoration or
repair being paid to the Borrower, or (c) to the reduction of the principal
amount of the Mortgage Loan. For each Mortgaged Property located in a Zone 3 or
Zone 4 seismic zone, either: (i) a seismic report which indicated a PML of less
than 20% was prepared, based on a 450- or 475-year lookback with a 10%
probability of exceedance in a 50-year period, in connection with the
origination of the Mortgage Loan secured by such Mortgaged Property or (ii) the
improvements for the Mortgaged Property are insured against earthquake damage.
(15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered delinquent or unpaid
until the date on which interest or penalties would be first payable thereon.
(16) Borrower Bankruptcy. No Borrower is, to the Seller's knowledge, a
debtor in any state or federal bankruptcy or insolvency proceeding.
(17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Borrower as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Borrower's interest in the
Ground Lease but not by the related fee interest in such Mortgaged Property (the
"Fee Interest"), and as to such Ground Leases:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not prohibit
the interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Encumbrances;
(c) The Borrower's interest in such Ground Lease is assignable to
the Depositor and the Trustee as its assignee upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Depositor and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
(d) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is binding
on a lender unless the lender has consented thereto, and the Seller has
received no notice that an event of default has occurred thereunder, and,
to the Seller's knowledge, there exists no condition that, but for the
passage of time or the giving of notice, or both, would result in an event
of default under the terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
(f) A lender is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Maturity Date of the related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the lender or a trustee appointed by the related Mortgage
having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling a
third 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 the Mortgage Loan
together with any accrued interest thereon;
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage;
(j) Such Ground Lease requires the lessor to enter into a new lease
upon termination of such Ground Lease if the Ground Lease is rejected in a
bankruptcy proceeding; and
(k) Such Ground Lease may not be amended or modified or any such
amendment or modification will not be effective against the lender without
the prior written consent of the lender under such Mortgage Loan, and any
such action without such consent is not binding on such lender, its
successors or assigns; provided, however, that termination or cancellation
without such consent may be binding on the lender if (i) an event of
default occurs under the Ground Lease, (ii) notice is provided to the
lender and (iii) such default is curable by the lender as provided in the
Ground Lease but remains uncured beyond the applicable cure period.
(18) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
(19) LTV Ratio. The gross proceeds of each Mortgage Loan to the related
Borrower at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated, at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (ii) at the Closing Date, at least equal to 80 percent
of the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest 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 clauses (a)(i) and (a)(ii) of this paragraph 19 shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans); or (b)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property that served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(20) Mortgage Loan Modifications. Any Mortgage Loan that was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code either (a) was modified as a result of
the default under such Mortgage Loan or under circumstances that made a default
reasonably foreseeable or (b) satisfies the provisions of either clause (a)(i)
of paragraph 19 (substituting the date of the last such modification for the
date the Mortgage Loan was originated) or clause (a)(ii) of paragraph 19,
including the proviso thereto.
(21) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
(22) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, except, in each case, for liens insured against by the
Title Policy referred to herein, and no rights are outstanding that under law
could give rise to any such lien that would be prior or equal to the lien of the
related Mortgage except, in each case, for liens insured against by the Title
Policy referred to herein.
(23) Compliance with Laws. Except as otherwise specifically disclosed in
an exception in Schedule V to this Agreement to another representation and
warranty made by the seller in this Exhibit A, at origination, each Mortgage
Loan complied with all applicable federal, state and local statutes and
regulations. Each Mortgage Loan complied with (or is exempt from) all applicable
usury laws in effect at its date of origination.
(24) Cross-collateralization. No Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
(25) Releases of Mortgaged Property. Except as described in the next
sentence, no Note or Mortgage requires the lender to release all or any material
portion of the related Mortgaged Property that was included in the appraisal for
such Mortgaged Property, and/or generates income from the lien of the related
Mortgage except upon payment in full of all amounts due under the related
Mortgage Loan or in connection with the defeasance provisions of the related
Note and Mortgage. Except as disclosed in Schedule V to this Agreement or the
Prospectus Supplement with respect to Crossed Mortgage Loans and Mortgage Loans
secured by multiple Mortgaged Properties, no Mortgage Loan requires the lender
to grant releases of portions of the related Mortgaged Properties except upon
(a) the satisfaction of certain legal and underwriting requirements and/or (b)
the payment of a release price and prepayment consideration in connection
therewith. Except as described in the first sentence hereof and for those
Mortgage Loans identified on Schedule V to this Agreement, no Mortgage Loan
permits the full or partial release or substitution of collateral unless the
lender or servicer can require the Borrower to provide an opinion of tax counsel
to the effect that such release or substitution of collateral (a) would not
constitute a "significant modification" of such Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b)(2) and (b) would not cause such
Mortgage Loan to fail to be a "qualified mortgage" within the meaning of Section
860G(a)(3)(A) of the Code. The loan documents require the related Borrower to
bear the cost of such opinion.
(26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Trust Mortgage Loan may provide for the
accrual of interest at an increased rate after the Anticipated Repayment Date)
or for any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
(27) No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration (and no event
which, with the passage of time or the giving of notice, or both, would
constitute any of the foregoing) under the documents evidencing or securing the
Mortgage Loan, in any such case to the extent the same materially and adversely
affects the value of the Mortgage Loan and 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 and warranty made by the Seller elsewhere in this Exhibit A or
the exceptions listed in Schedule V to this Agreement.
(28) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
(29) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the 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, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
(30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified therein. The
Seller has no knowledge that any of the Mortgaged Properties is encumbered by
any lien (other than a Permitted Encumbrance) junior to the lien of the related
Mortgage.
(31) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Borrower or related Mortgaged
Property that might adversely affect title to the Mortgaged Property or the
validity or enforceability of the related Mortgage or that might materially and
adversely affect the value of the Mortgaged Property as security for the
Mortgage Loan or the use for which the premises were intended.
(32) Servicing. The servicing and collection practices used by the Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
(33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Borrower was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
(34) Collateral in Trust. The Note for each Mortgage Loan is not secured
by a pledge of any collateral that has not been assigned to the Depositor.
(35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the holder of
the Mortgage, the property subject to the Mortgage or any material portion
thereof, or a controlling interest in the related Borrower, is transferred, sold
or encumbered by a junior mortgage or deed of trust; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan by a
third party upon the Borrower's satisfaction of certain conditions precedent,
and upon payment of a transfer fee, if any, or transfer of interests in the
Borrower or constituent entities of the Borrower to a third party or parties
related to the Borrower upon the Borrower's satisfaction of certain conditions
precedent.
(36) Non-Recourse Exceptions. The Mortgage Loan Documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Borrower, provided that at least one natural person
(and the Borrower if the Borrower is not a natural person) is liable to the
holder of the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Borrower, misappropriation of rents, insurance proceeds
or condemnation awards and breaches of the environmental covenants in the
Mortgage Loan Documents.
(37) REMIC Eligibility. Each Mortgage Loan is a "qualified mortgage" as
such term is defined in Section 860G(a)(3) of the Code (without regard to
Treasury Regulations Section 1.860G-2(f)(2), which treats certain defective
mortgage loans as qualified mortgages).
(38) Prepayment Premiums. As of the applicable date of origination of each
such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans of the Seller.
(39) [Reserved].
(40) Single Purpose Entity. The Borrower on each Mortgage Loan with a
Cut-off Date Principal Balance in excess of $10 million, was, as of the
origination of the Mortgage Loan, a Single Purpose Entity. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was formed
or organized solely for the purpose of owning and operating one or more of the
Mortgaged Properties securing the Mortgage Loans and prohibit it from engaging
in any business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan Documents, substantially to the effect that it does not
have any assets other than those related to its interest in, and operation of,
such Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
Documents, that it has its own books and records and accounts separate and apart
from any other person (other than a Borrower for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan), and
that it holds itself out as a legal entity, separate and apart from any other
person.
(41) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the lender incurred in connection with (i) the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and (ii) the approval of an assumption of such Mortgage Loan.
(42) Defeasance. No Mortgage Loan provides that it can be defeased until a
date that is more than two years after the Closing Date or provides that it can
be defeased with any property other than government securities (as defined in
Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
(43) Authorized To Do Business. To the extent required under applicable
law as of the date of origination, and necessary for the enforceability or
collectability of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the Mortgage Loan.
(44) Terrorism Insurance. With respect to each Mortgage Loan that has a
Stated Principal Balance as of the Cut-off Date that is greater than or equal to
$20,000,000, the related "all risk" insurance policy and business interruption
policy do not specifically exclude acts of terrorism from coverage. With respect
to each other Mortgage Loan, the related "all risk" insurance policy and
business interruption policy did not, as of the date of origination of the
Mortgage Loan, and, to the Seller's knowledge, does not as of the date hereof,
specifically exclude acts of terrorism from coverage. With respect to each of
the Mortgage Loans, the related Mortgage Loan Documents do not expressly waive
or prohibit the lender from requiring coverage for acts of terrorism or damages
related thereto, except to the extent that any right to require such coverage
may be limited by commercially reasonable availability, or as otherwise
indicated on Schedule V to this Agreement.
(45) Operating Statements and Rent Rolls. In the case of each Mortgage
Loan, the related Mortgage Loan Documents require the related Borrower, in some
cases at the request of the lender, to provide to the holder of such Mortgage
Loan operating statements and rent rolls not less frequently than annually
(except if the Mortgage Loan has an outstanding principal balance of less than
or equal to $3,500,000 as of the Cut-off Date or the related Mortgaged Property
has only one tenant, in either of which cases, the Mortgage Loan Documents
require the Borrower, in some cases at the request of the lender, to provide to
the holder of such Mortgage Loan operating statements and (if there is more than
one tenant) rent rolls and/or financial statements of the Borrower annually),
and such other information as may be required therein.
(46) Appraisals. An appraisal of the related Mortgaged Property was
conducted in connection with the origination of such Mortgage Loan, and such
appraisal satisfied the guidelines in Title XI of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as in effect on the date such
Mortgage Loan was originated.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_________________________________, being duly sworn, deposes and
says:
1. that he is an authorized signatory of KeyBank National
Association ("KeyBank");
2. that KeyBank 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 KeyBank, 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 KeyBank National Association, under date of ______________ (the
"Note");
4. that the Note is now owned and held by KeyBank;
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 KeyBank; and
7. upon assignment of the Note by KeyBank 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 2008-C1 (the "Trustee") (which assignment may, at the
discretion of the Depositor, be made directly by KeyBank to the Trustee) KeyBank
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 KeyBank's failure to deliver said
original Note to the Trustee.
KEYBANK NATIONAL ASSOCIATION,
By:____________________________________
Name:
Title:
Sworn to before me
this ________ day of [ ], 200[__]
