EXHIBIT 4.3
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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 December 1, 2004
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TABLE OF CONTENTS
Page
Section 1. Transactions on or Prior to the Closing Date..................
Section 2. Closing Date Actions..........................................
Section 3. Conveyance of Mortgage Loans..................................
Section 4. Depositor's Conditions to Closing.............................
Section 5. Seller's Conditions to Closing................................
Section 6. Representations and Warranties of Seller......................
Section 7. Obligations of Seller.........................................
Section 8. Crossed Mortgage Loans........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance...................................................
Section 10. Representations and Warranties of Depositor...................
Section 11. Survival of Certain Representations, Warranties and
Covenants....................................................
Section 12. Transaction Expenses..........................................
Section 13. Recording Costs...............................................
Section 14. Notices.......................................................
Section 15. Examination of Mortgage Files.................................
Section 16. Successors....................................................
Section 17. Governing Law.................................................
Section 18. Severability..................................................
Section 19. Further Assurances............................................
Section 20. Counterparts..................................................
Section 21. Treatment as Security Agreement...............................
Section 22. Recordation of Agreement......................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for KeyBank Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of Lost Mortgage Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 1, 2004, is made by and between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each Mortgage Loan to Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"),
against receipt by Seller of a trust receipt, pursuant to an arrangement between
Seller and the Trustee.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other location as agreed upon between the parties hereto. On the Closing
Date, the following actions shall take place in sequential order on the terms
set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller by wire transfer in
immediately available funds to an account designated by Seller on or prior
to the Closing Date (or, by such other method as shall be mutually
acceptable to Depositor and Seller). The "Mortgage Loan Purchase Price"
paid by Depositor shall be equal to the amount that the Depositor and the
Seller have mutually agreed upon (which amount includes, without
limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, without recourse except as provided
herein, to Depositor, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under: (i) each of the
Mortgage Loans identified on the Mortgage Loan Schedule; and (ii) all property
of Seller described in Section 21(b) of this Agreement, including, without
limitation, (A) all scheduled payments of interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date and (B) all other payments
of interest, principal or yield maintenance charges received on or with respect
to the Mortgage Loans after the Cut-off Date, other than any such payments of
interest or principal or yield maintenance charges that were due on or prior to
the Cut-off Date. The Mortgage File for each Mortgage Loan shall consist of the
following documents:
(a) each original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the form
of Exhibit B hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements, assignments or allonges
showing a complete chain of endorsement or assignment from the Mortgage Loan
Originator either in blank or to the Seller, and further endorsed by the Seller,
on its face or by allonge attached thereto, without recourse, in blank or to the
order of the Trustee in the following form: "Pay to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C5, without recourse, representation or warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to the Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form (except
for any missing recording information and, if applicable, completion of the name
of the assignee), from the Seller (or the Mortgage Loan Originator), either in
blank or to "Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2004-C5";
(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 2004-C5";
(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 2004-C5," which assignment
may be included as part of an omnibus assignment covering other documents
relating to the Mortgage Loan (provided that such omnibus assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company) or interim binder that is marked as
binding and countersigned by the title company, insuring the priority of the
Mortgage as a first lien on the related Mortgaged Property, relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) certified or other copies of all UCC Financing Statements and
continuation statements which show the filing or recording thereof or copies
thereof in the form submitted for filing or recording sufficient to perfect (and
maintain the perfection of) the security interest held by the Mortgage Loan
Originator (and each assignee of record prior to the Trustee) in and to the
personalty of the Borrower at the Mortgaged Property that is described in the
related Mortgage or a separate security agreement, and original UCC Financing
Statement assignments in a form suitable for filing or recording, sufficient to
transfer such UCC Financing Statements to the Trustee;
(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including (as applicable) any Intercreditor
Agreement, mezzanine loan documents or preferred equity documents, together
with, if the Mortgage Loan is an A Loan, a copy of the Note for each related B
Loan;
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral control agreement
or lock-box control agreement, as applicable, and a copy of the UCC Financing
Statements, if any, submitted for filing with respect to the Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and all funds
contained therein (together with UCC Financing Statement assignments in a form
suitable for filing or recording, sufficient to transfer such UCC Financing
Statements to the Trustee on behalf of the Certificateholders);
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Agreement (if separate from the related Mortgage
and Loan Agreement);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies thereof;
(r) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel, or a copy of
any of the foregoing;
(s) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties; and
(t) 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(i) of the Pooling and Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to clauses (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (l) and (n)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon on the Closing Date, solely because of a delay
caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, then the Seller: (i)
shall deliver, or cause to be delivered, to the Trustee a duplicate original or
true copy of such document certified by the applicable public recording or
filing office, the applicable title insurance company or the Seller to be a true
and complete duplicate original or copy of the original thereof submitted for
recording or filing; and (ii) shall deliver, or cause to be delivered, to the
Trustee either the original of such non-delivered document or instrument, or a
photocopy thereof (certified by the appropriate public recording or filing
office to be a true and complete copy of the original thereof submitted for
recording or filing), with evidence of recording or filing thereon, within 120
days of the Closing Date, which period may be extended up to two times, in each
case for an additional period of 45 days (provided that the Seller, as certified
in writing to the Trustee prior to each such 45-day extension, is in good faith
attempting to obtain from the appropriate county recorder's office such original
or photocopy). Compliance with this paragraph will satisfy the Seller's delivery
requirements under this Section 3 with respect to the subject document(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, the Seller cannot deliver, or cause to be delivered, an
original, counterpart or certified copy, as applicable, of any of the documents
and/or instruments required to be delivered pursuant to clauses (b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be recorded or filed
other than in accordance with the transfer contemplated by this Agreement), (l)
and (n) (other than assignments of UCC Financing Statements to be recorded or
filed in accordance with the transfer contemplated by this Agreement) above with
evidence of recording or filing thereon, for any other reason, including without
limitation, that such non-delivered document has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document shall be deemed to have been included in the related
Mortgage File if a photocopy of such non-delivered document (with evidence of
recording or filing thereon and certified by the appropriate recording or filing
office to be a true and complete copy of the original thereof as filed or
recorded) is delivered to the Trustee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver any UCC Financing Statement assignment with the filing information of
the related UCC Financing Statement with respect to any Mortgage Loan, solely
because such UCC Financing Statement has not been returned by the public filing
office where such UCC Financing Statement has been delivered for filing, the
Seller shall so notify the Trustee and shall not be in breach of its obligations
with respect to such delivery, provided that the Seller promptly forwards such
UCC Financing Statement to the Trustee upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing.
The Seller may, at its sole cost and expense, but is not obligated
to, engage a third party contractor to prepare or complete in proper form for
filing or recording any and all assignments of Mortgage, assignments of
Assignments of Leases and assignments of UCC Financing Statements to the Trustee
to be delivered pursuant to clauses (c), (e), (k) and (n) above (collectively,
the "Assignments"), to submit the Assignments for filing and recording, as the
case may be, in the applicable public filing and recording offices and to
deliver those Assignments to the Trustee or its designee as those Assignments
(or certified copies thereof) are received from the applicable filing and
recording offices with evidence of such filing or recording indicated thereon.
In the event the Seller engages a third party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of the Seller
pursuant to this Agreement remain binding on such Seller; and, if the Seller
does not engage a third party as contemplated by the immediately preceding
sentence, then the Seller will still be liable for recording and filing fees and
expenses of the Assignments as and to the extent contemplated by Section 13
hereof.
Within ten (10) Business Days after the Closing Date, the Seller
shall deliver the Servicer Files with respect to each of the Mortgage Loans 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, 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
privileged communications and documents prepared by the Seller or any of its
Affiliates solely for internal communication, credit underwriting or due
diligence analyses (other than the underwriting information contained in the
related underwriting memorandum or asset summary report prepared by the Seller
in connection with the preparation of Exhibit A-1 to the Prospectus Supplement))
that are not required to be a part of a Mortgage File in accordance with the
definition thereof, together with copies of all instruments and documents which
are required to be a part of the related Mortgage File in accordance with the
definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller shall cause to be prepared, executed and delivered to the
issuer of each such letter of credit such notices, assignments and
acknowledgements as are required under such letter of credit to assign, without
recourse, to, and vest in, the Trustee (whether by actual assignment or by
amendment of the letter of credit) the Seller's rights as the beneficiary
thereof and drawing party thereunder. The designated beneficiary under each
letter of credit referred to in the preceding sentence shall be the Trustee.
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File", if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
The Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of the Seller or any other name, to be transferred to the Master Servicer
(or a Sub-Servicer at the direction of the Master Servicer) for deposit into
Servicing Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Mortgage Note, the Mortgage and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the Master Servicer via wire transfer for deposit by the
Master Servicer into the Collection Account.
Upon sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller shall, under
generally accepted accounting principles ("GAAP"), report its transfer of the
Mortgage Loans to the Depositor, as provided herein, as a sale of the Mortgage
Loans to the Depositor in exchange for the consideration specified in Section 2
hereof. In connection with the foregoing, upon sale of Certificates representing
at least 10% of the fair value of all the Certificates to unaffiliated third
parties, Seller shall cause all of its financial and accounting records to
reflect such transfer as a sale (as opposed to a secured loan). Regardless of
its treatment of the transfer of the Mortgage Loans to the Depositor under GAAP,
Seller shall at all times following the Closing Date cause all of its records
and financial statements and any relevant consolidated financial statements of
any direct or indirect parent to clearly reflect that the Mortgage Loans have
been transferred to the Depositor and are no longer available to satisfy claims
of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of the Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of the Seller required to be performed
by it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; all
of the representations and warranties of Seller under this Agreement (subject to
the exceptions in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; and no event shall have occurred with
respect to the Seller or any of the Mortgage Loans and related Mortgage Files
which, with notice or the passage of time, would constitute a material default
under this Agreement; and Depositor shall have received certificates to the
foregoing effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or the
Depositor's attorneys, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
the Depositor and the Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the proviso to the first sentence
of Section 1 of this Agreement, which shall have been delivered to and
held by the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its representations
and warranties set forth in Section 6 (subject to the exceptions in the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the Closing
Date, covering various corporate matters and such other matters as shall
be reasonably required by the Depositor;
(v) such other certificates of Seller's officers or others and such
other documents to evidence fulfillment of the conditions set forth in
this Agreement as Depositor or its counsel may reasonably request; and
(vi) all other information, documents, certificates, or letters with
respect to the Mortgage Loans or Seller and its Affiliates as are
reasonably requested by the Depositor in order for the Depositor to
perform any of it obligations or satisfy any of the conditions on its part
to be performed or satisfied pursuant to any sale of Mortgage Loans by the
Depositor as contemplated herein.
(c) The Seller shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) 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 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 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.
Seller has conducted and is conducting its business so as to comply in all
material respects with all applicable statutes and regulations of
regulatory bodies or agencies having jurisdiction over it, except where
the failure so to comply would not have a materially adverse effect on the
performance by Seller of this Agreement, and there is no charge,
investigation, action, suit or proceeding before or by any court,
regulatory authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to materially
and adversely affect the performance by Seller of this Agreement or the
consummation of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to hold,
transfer and convey the Mortgage Loans owned by it and to execute and
deliver this Agreement (and all agreements and documents executed and
delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all agreements
and documents executed and delivered by Seller in connection herewith).
Seller has duly authorized the execution, delivery and performance of this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith), and has duly executed and delivered this
Agreement (and all agreements and documents executed and delivered by
Seller in connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each other
party thereto, constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, fraudulent transfer, insolvency,
reorganization, receivership, moratorium or other laws relating to or
affecting the rights of creditors generally, by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or result
in a breach of any of the terms, conditions or provisions of Seller's
organizational documents; (B) conflict with, result in a breach of, or
constitute a default or result in an acceleration under, any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound if compliance therewith is necessary (1) to ensure
the enforceability of this Agreement or (2) for Seller to perform its
duties and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C) conflict
with or result in a breach of any legal restriction if compliance
therewith is necessary (1) to ensure the enforceability of this Agreement
or (2) for Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith); (D) result in the violation of any law, rule,
regulation, order, judgment or decree to which Seller or its property is
subject if compliance therewith is necessary (1) to ensure the
enforceability of this Agreement or (2) for Seller to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); or (E) result in
the creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its duties
and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith), or materially
impair the ability of the Depositor to realize on the Mortgage Loans owned
by Seller.
(iv) Seller is solvent and the sale of Mortgage Loans (1) will not
cause Seller to become insolvent and (2) is not intended by Seller to
hinder, delay or defraud any of its present or future creditors. After
giving effect to its transfer of the Mortgage Loans, as provided herein,
the value of Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of Seller's debts and
obligations, including contingent and unliquidated debts and obligations
of Seller, and Seller will not be left with unreasonably small assets or
capital with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or obligations
beyond its ability to pay such debts and obligations as they mature. No
proceedings looking toward liquidation, dissolution or bankruptcy of the
Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to, any court or governmental agency or body
having jurisdiction or regulatory authority over Seller is required for
(A) Seller's execution, delivery and performance of this Agreement (or any
agreement or document executed and delivered by Seller in connection
herewith), (B) Seller's transfer and assignment of the Mortgage Loans, or
(C) the consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by Seller
in connection herewith) or, to the extent so required, such consent,
approval, authorization, order, registration, filing or notice has been
obtained, made or given (as applicable), except that Seller may not be
duly qualified to transact business as a foreign corporation or licensed
in one or more states if such qualification or licensing is not necessary
to ensure the enforceability of this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller is
receiving new value. The consideration received by Seller upon the sale of
the Mortgage Loans owned by it constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform
its duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under this
Agreement (and each agreement or document executed and delivered by Seller
in connection herewith) is in the ordinary course of business of Seller
and Seller's transfer, assignment and conveyance of the Mortgage Loans
pursuant to this Agreement are not subject to the bulk transfer or similar
statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be entitled, by
reason of any act or omission of Seller, to any commission or compensation
in connection with the sale of the Mortgage Loans to the Depositor
hereunder except for (A) the reimbursement of expenses as described herein
or otherwise in connection with the transactions described in Section 2
hereof and (B) the commissions or compensation owed to the Underwriters or
the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions in the Exception Report, are true and
correct in all material respects as of the date hereof (or, in each case,
as of such other date specifically set forth in the subject representation
and warranty) with respect to the Mortgage Loans identified on Schedule
II.
(b) The Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Trustee as the holder of
the Mortgage Loan to be replaced, with respect to any replacement mortgage loan
(a "Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected
by a Material Defect or a Material Breach, pursuant to Section 7 of this
Agreement, each of the representations and warranties set forth in Exhibit A
hereto (subject to exceptions disclosed at such time) (references therein to
"Closing Date" being deemed to be references to the "date of substitution" and
references therein to "Cut-off Date" being deemed to be references to the "most
recent due date for the subject Replacement Mortgage Loan on or before the date
of substitution"). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases but shall not inure to the benefit of any subsequent transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit A hereto and made by the
Seller with respect to 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), 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" and a "Material
Defect", respectively), then the Seller shall, upon request of the Depositor,
the Trustee, the Master Servicer or the Special Servicer, not later than the
earlier of 90 days from the receipt by the Seller of such request (subject to
the second succeeding paragraph, the "Initial Resolution Period"): (i) cure such
Material Breach or Material Defect, as the case may be, in all material
respects; (ii) repurchase the affected Mortgage Loan at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii) substitute,
in accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the Master Servicer for deposit into the Collection Account any Substitution
Shortfall Amount (as defined in the Pooling and Servicing Agreement) in
connection therewith; provided, however, that if (i) such Material Breach or
Material Defect is capable of being cured but not within the Initial Resolution
Period, (ii) such Material Breach or Material Defect does not cause the related
Mortgage Loan not to be a "qualified mortgage" (within the meaning of Section
860G(a) 3) of the Code), (iii) the Seller has commenced and is diligently
proceeding with the cure of such Material Breach or Material Defect within the
Initial Resolution Period and (iv) the Seller has delivered to the Rating
Agencies, the Master Servicer, the Special Servicer and the Trustee an Officer's
Certificate that describes the reasons that the cure was not effected within the
Initial Resolution Period and the actions that it proposes to take to effect the
cure and that states that it anticipates the cure will be effected within the
additional 90-day period, then the Seller shall have an additional 90 days to
cure such Material Defect or Material Breach. With respect to any substitution
of one or more Qualified Substitute Mortgage Loans for a Mortgage Loan
hereunder, (A) no such substitution may be made in any calendar month after the
Determination Date for such month; (B) scheduled payments of principal and
interest due with respect to the Qualified Substitute Mortgage Loan(s) after the
related date of substitution shall be part of the Trust Fund; and (C) scheduled
payments of principal and interest due with respect to such Qualified Substitute
Mortgage Loan(s) on or prior to the related date of substitution shall not be
part of the Trust Fund, and the Seller shall be entitled to receive such
payments promptly following receipt by the Master Servicer or Special Servicer,
as applicable, under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in and the value of a
Mortgage Loan: (a) the absence from the Mortgage File of the original signed
Note, unless the Mortgage File contains a signed lost note affidavit and
indemnity; (b) the absence from the Mortgage File of the original signed
Mortgage, unless there is included in the Mortgage File a certified copy of the
Mortgage as recorded or as sent for recordation, together with a certificate
stating that the original signed Mortgage was sent for recordation, or a copy of
the Mortgage and the related recording information; (c) the absence from the
Mortgage File of the item called for by clause (i) of the definition of Mortgage
File in Section 3; (d) the absence from the Mortgage File of any intervening
assignments required to create an effective assignment to the Trustee on behalf
of the Trust, unless there is included in the Mortgage File a certified copy of
the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; (e) the absence from the
Mortgage File of any required original letter of credit, provided that such
Defect may be cured by any substitute letter of credit or cash reserve on behalf
of the related Borrower; or (f) the absence from the Mortgage File of the
original or a copy of any required ground lease.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a) 3) of the Code)
shall be deemed to materially and adversely affect the interest of
Certificateholders therein and the Initial Resolution Period for the affected
Mortgage Loan shall be 90 days following the earlier of (a) notice to Seller of
the discovery of such Defect or Breach by any party to the Pooling and Servicing
Agreement or (b) Seller's discovery of such Defect or Breach (which period shall
not be subject to extension).
If the Seller does not, as required by this Section 7, correct or
cure a Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Breach or Defect is not capable of being so corrected or cured within
such period, then the Seller shall purchase or substitute for the affected
Mortgage Loan as provided in this Section 7. If (i) any Mortgage Loan is
required to be repurchased or substituted for as provided above, (ii) such
Mortgage Loan is a Crossed Mortgage Loan that is a part of a Mortgage Group (as
defined below) and (iii) the applicable Breach or Defect does not constitute a
Breach or Defect, as the case may be, as to any other Crossed Mortgage Loan in
such Mortgage Group (without regard to this paragraph), then the applicable
Breach or Defect, as the case may be, will be deemed to constitute a Breach or
Defect, as the case may be, as to any other Crossed Mortgage Loan in the
Mortgage Group for purposes of the above provisions, and the Seller will be
required to repurchase or substitute for such other Crossed Mortgage Loan(s) in
the related Mortgage Group in accordance with the provisions of this Section 7
unless the Crossed Mortgage Loan Repurchase Criteria would be satisfied if
Seller were to repurchase or substitute for only the affected Crossed Mortgage
Loans as to which a Material Breach or Material Defect had occurred without
regard to this paragraph, and in the case of either such repurchase or
substitution, all of the other requirements set forth in the Pooling and
Servicing Agreement applicable to a repurchase or substitution, as the case may
be, would be so satisfied. In the event that the Crossed Mortgage Loan
Repurchase Criteria would be so satisfied, the Mortgage Loan Seller may elect
either to repurchase or substitute for only the affected Crossed Mortgage Loan
as to which the Material Defect or Material Breach exists or to repurchase or
substitute for the aggregated Crossed Mortgage Loans. The determination of the
Special Servicer as to whether the Crossed Mortgage Loan Repurchase Criteria
have been satisfied shall be conclusive and binding in the absence of manifest
error. In the event that one or more of such other Crossed Mortgage Loans
satisfy the Crossed Mortgage Loan Repurchase Criteria, the Seller may elect
either to repurchase or substitute for only the affected Crossed Mortgage Loan
as to which the related Breach or Defect exists or to repurchase or substitute
for all of the Crossed Mortgage Loans in the related Mortgage Group. The Seller
shall be responsible for the cost of (and, if so directed by the Special
Servicer, obtaining) any Appraisal required for the Special Servicer to
determine if the Crossed Mortgage Loan Repurchase Criteria have been satisfied,
so long as the scope and cost of such Appraisal has been approved by the Seller
(such approval not to be unreasonably withheld). For purposes of this paragraph,
a "Mortgage Group" is any group of Mortgage Loans identified as a Mortgage Group
on Schedule III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, the Seller will not
be obligated to repurchase or substitute for the entire Mortgage Loan if the
Mortgaged Loan may, pursuant to the terms of the related Mortgage Loan
Documents, be severed to allow for the repurchase of a portion of the Mortgage
Loan representing the affected Mortgaged Property and the Mortgage Loan
remaining after such severance satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) the Seller provides an opinion of counsel to
the effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) such Seller pays
(or causes to be paid) the applicable release price required under the Mortgage
Loan Documents and, to the extent not reimbursable out of the release price
pursuant to the related Mortgage Loan Documents, any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released, and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for cure of a Material Breach or Material Defect in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to the Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by the Depositor or the Trustee, as the case may be, and the
Depositor or the Trustee, as the case may be, upon receipt of such funds (and,
in the case of a substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans), shall promptly release the related Mortgage File and
Servicer File (and all other documents pertaining to such Mortgage Loan
possessed by the Depositor or the Trustee, as applicable, or on its behalf, but
excluding any draft documents, attorney/client privileged communications and
documents prepared by the Depositor or the Trustee, as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in the Seller the legal and
beneficial ownership of such Mortgage Loan (including any property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan Documents and shall deliver to Seller any escrow
payments and reserve funds held by it, or on its behalf, with respect to such
repurchased or replaced Mortgage Loan.
It is understood and agreed that the obligations of the Seller set
forth in this Section 7 to cure, substitute for or repurchase a Mortgage Loan
listed on Schedule II hereto constitute the sole remedies available to the
Depositor and its successors and assigns against Seller respecting any Breach or
Defect affecting such Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, the
Seller and the Depositor (on behalf of its successors and assigns) agree to
modify upon such repurchase or substitution, the related Mortgage Loan Documents
in a manner such that such affected Crossed Mortgage Loan repurchased or
substituted by the Seller, on the one hand, and any related Crossed Mortgage
Loans still held by the Trustee, on the other, would no longer be
cross-defaulted or cross-collateralized with one another; provided, that the
Seller shall have furnished to the Trustee, at the Seller's expense, an opinion
of counsel that such modification shall not cause an Adverse REMIC Event;
provided, further, that if such opinion cannot be furnished, the Seller and the
Depositor hereby agree that such repurchase or substitution of only the affected
Crossed Mortgage Loans, notwithstanding anything to the contrary herein, shall
not be permitted (in which case, the Seller will be obligated to purchase all
Crossed Mortgage Loans). Any reserve or other cash collateral or letters of
credit securing the affected Crossed Mortgage Loans shall be allocated between
such Mortgage Loans in accordance with the Mortgage Loan Documents. All other
terms of the Mortgage Loans shall remain in full force and effect, without any
modification thereof (unless otherwise modified in accordance with the Pooling
and Servicing Agreement).
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto. The Seller
shall pay all reasonable costs and expenses associated with a defeasance of a
Mortgage Loan to the extent such costs and expenses have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (liv)(F) set forth on Exhibit A hereto.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require the consent of, notice to or any filing with any
person, entity or governmental body, which has not been obtained or made by
Depositor, except where, in any of the instances contemplated by clause (i)
above or this clause (ii), the failure to do so will not have a material and
adverse effect on the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 9 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. Whether or not this Agreement is
terminated, both the Depositor and the Seller agree to pay the transaction
expenses incurred in connection with the transactions herein contemplated as set
forth in the Closing Statement.
Section 13. Recording Costs. Seller agrees to reimburse the Trustee
or its designee all recording and filing fees and expenses incurred by the
Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement, including
Assignments. In the event Seller elects to engage a third party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, by
overnight mail or courier service, or transmitted by facsimile and confirmed by
similar mailed writing, if to the Depositor, addressed to the Depositor at 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx,
Telecopy No.: (000) 000-0000 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal &
Compliance Department, Telecopy No.: (000) 000-0000, or such other address or
telecopy number as may be designated by the Depositor to the Seller in writing,
or, if to the Seller, addressed to the Seller 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, 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000 Attention: Xxxxxx X. Xxxxx), or such other address or
telecopy number as may be designated by the Seller to the Depositor in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors,
permitted assigns and legal representatives, and nothing expressed in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; it being
understood that the rights of Depositor pursuant to this Agreement, subject to
all limitations herein contained, including those set forth in Section 7 of this
Agreement, may be assigned to the Trustee, for benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to such
rights of Depositor hereunder, provided that the Trustee shall have no right to
further assign such rights to any other Person. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor
because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money, deposit
accounts, certificates of deposit, goods, letters of credit, advices of
credit and investment property consisting of, arising from or relating to
any of the property described in the Mortgage Loans, including the related
Notes, Mortgages and title, hazard and other insurance policies,
identified on the Mortgage Loan Schedule or that constitute Replacement
Mortgage Loans, and all distributions with respect thereto payable after
the Cut-off Date;
(ii) all accounts, contract rights, general intangibles, chattel
paper, instruments, documents, money, deposit accounts, certificates of
deposit, goods, letters of credit, advices of credit and investment
property arising from or by virtue of the disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or claims
against other persons with respect to, all or any part of the collateral
described in (i) above (including any accrued discount realized on
liquidation of any investment purchased at a discount), in each case,
payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral described in
clauses (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction; and
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law.
The Seller at the direction of the Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may execute and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an opinion of
counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as of the date first
above written.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By:____________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:____________________________________
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of December 1, 2004, between KeyBank National Association (the "Seller") and
Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
Capitalized terms used herein without definition have the meanings given them in
or by reference in the Agreement or, if not defined in the Agreement, in the
Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Borrower" means the borrower under a Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated December 16, 2004, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series 2004-C5,
issued in multiple classes.
"Closing Date" means December 28, 2004.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in December 2004.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means exceptions with respect to the
representations and warranties made by the Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of the Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 (subject to the proviso in Section 1 of the
Agreement).
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of the Agreement.
"Offering Circular" means the confidential offering circular dated
December 16, 2004, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
December 1, 2004, among the Master Servicer, the Special Servicer, the
Depositor, the Trustee and the Certificate Administrator, including, without
limitation, the exhibits and schedules annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus, dated December 16, 2004, that is
a part of the Depositor's registration statement on Form S-3 (File No.
333-116258).
"Prospectus Supplement" means the Prospectus Supplement, dated
December 16, 2004, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-4, Class A-1-A, Class A-J, Class B, Class C and
Class D Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 thereof.
"Underwriters" means Credit Suisse First Boston LLC, KeyBanc Capital
Markets, a Division of McDonald Investments Inc., ABN AMRO Incorporated and X.X.
Xxxxxx Securities Inc.
"Underwriting Agreement" means the Underwriting Agreement, dated
December 16, 2004, between the Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Loan Group
# Crossed # Property Name
--- ------- ---------- ----------------------------------------
8 1 Orangefair Marketplace Shopping Center
10 1 Shoppes of Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx
00 0 Xxxxx Xxxx Apartments
16 2 Villas at D'Xxxxxx
20 1 Dekalb County Shopping Center
00 0 Xxxxxxxxx Xxxxx Xxxxxxxxxx
00 0 Clifty Crossing
35 0 Xxxxxx Xxxxx at Concord Xxxxx
42 1 Stevens Creek Office Xxxxxx
00 0 Xxxxxx Xxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxxx Crossing
51 1 Warner View Corporate Center
57 1 Sorrento Research Facility
59 0 Xxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx
00 0 Xxxxxxxxxx Townhomes Apartments
80 1 North Eastwood Shopping Center
87 1 National Hwy 54 / Self Storage
93 1 Xxxxxxxxx Office Complex
98 2 Xxxxxxxx Court Apartments
117 1 Colonial Court
130 1 San Dimas Town Center
137 1 Shawnee Shopping Center
140 1 Polaris Professional Center
143 1 La Guardia Self Storage
147 1 Ft. Xxxxx Xxxxxxxx Xxxxxx
# Xxxxxxx
--- ---------------------------------------------------------------------------------------------
8 0000-0000 Xxxxx Xxxxxx Xxxxxxxxx, 000-000 Xxxx Xxxxxxxxxxxx Xxxxxx and 1391-1401 Xxxxx Xxxxxx
00 00000 Xxxxxxx Xxxxx Parkway
12 9115 Knights Xxxxxx Xxxxxxxxx
00 0000 Xxxxx X'Xxxxxx Xxxxxxx
20 0000-0000 Xxxxxxxx Xxxx
22 0000 Xx. Xxxxxx Xxxxxxxxx
29 1149 North National Road
35 7905 and 0000 Xxxxx Xxxx
42 20813-20883 Stevens Creek Xxxxxxxxx
00 0000 Xxxxx Xxxxxx Xxxxxx
45 0000 X.X. Xxxxxxx 287 and 100, 110 and 000 Xxxx Xxxxxx Xxxx
51 0000 Xxxxxxx Xxxxxx Xxxxxxxxx
57 3985 Sorrento Xxxxxx Xxxxxxxxx
00 0000 Xxxxxxxx Xxxx
68 00000 Xxxxxxxxxx Xxxxxx
80 0000 Xxxx 00xx Xxxxxx
87 000 Xxxx 00xx Xxxxxx
93 631 & 000 Xxxx Xxxxx Xxxx
98 0000 Xxxxxxxx Xxxxxxx North
117 000-000 Xxxx Xxxxxx
130 000-000 Xxxx Xxxxxx Xxxxxx
137 0000 Xxxxx Xxxxx Xxxxxx
140 1120 Xxxxxxx Xxxxxxx
000 0000 Xxxxxxx Xx Las Americas
147 0000-0000 0xx Xxxxxx Xxxxx
Xx. Ft./ Percentage of
Zip Mortgage Rooms/ Original Cut-off Initial
# City State Code Property Seller Pads Balance Balance (1) Pool Balance
--- -------------- ----- ----- ---------------------------- -------- ----------- ----------- -------------
8 Xxxxxxxxx XX 00000 KeyBank National Association 332,806 $36,000,000 $35,925,742 1.9%
10 Xxxxxx XX 00000 KeyBank National Association 172,350 $28,000,000 $28,000,000 1.5%
12 Xxxxxxxxxxxx XX 00000 KeyBank National Association 732 $26,500,000 $26,500,000 1.4%
16 Xxxxxx XX 00000 KeyBank National Association 256 $19,200,000 $19,178,905 1.0%
20 Xxxxxx XX 00000 KeyBank National Association 155,648 $18,000,000 $17,980,112 1.0%
22 Xxxxxxxxxxxx XX 00000 KeyBank National Association 534 $17,250,000 $17,250,000 0.9%
29 Xxxxxxxx XX 00000 KeyBank National Association 177,050 $15,350,000 $15,334,034 0.8%
35 Xxxxxxx XX 00000 KeyBank National Association 224,160 $14,313,750 $14,298,026 0.8%
42 Xxxxxxxxx XX 00000 KeyBank National Association 107,679 $11,556,000 $11,556,000 0.6%
43 Xxxxxxxxx XX 00000 KeyBank National Association 277,241 $11,525,000 $11,525,000 0.6%
45 Xxxxxxxxx XX 00000 KeyBank National Association 112,078 $10,982,300 $10,982,300 0.6%
51 Xxxxxxxx Xxxxx XX 00000 KeyBank National Association 61,355 $10,000,000 $9,989,540 0.5%
57 Xxx Xxxxx XX 00000 KeyBank National Association 58,908 $8,800,000 $8,790,161 0.5%
59 Xxxxxxxxxxxx XX 00000 KeyBank National Association 290 $8,400,000 $8,400,000 0.4%
68 Xxx Xxxxxxx XX 00000 KeyBank National Association 73 $7,300,000 $7,300,000 0.4%
80 Xxxxxxxxxxxx XX 00000 KeyBank National Association 168,506 $6,100,000 $6,086,813 0.3%
87 Xxxxxxxx Xxxx XX 00000 KeyBank National Association 58,748 $5,250,000 $5,250,000 0.3%
93 Xxxxxxx XX 00000 KeyBank National Association 37,131 $4,800,000 $4,800,000 0.3%
98 Xxxxxxxx XX 00000 KeyBank National Association 194 $4,450,000 $4,450,000 0.2%
117 Xxxxxxx XX 00000 KeyBank National Association 21,459 $3,540,000 $3,540,000 0.2%
130 Xxx Xxxxx XX 00000 KeyBank National Association 25,800 $3,200,000 $3,200,000 0.2%
137 Xxxxxxx XX 00000 KeyBank National Association 35,640 $3,000,000 $2,996,956 0.2%
140 Xxxxxxxx XX 00000 KeyBank National Association 30,068 $2,950,000 $2,945,873 0.2%
000 Xxxxx Xx XX 00000 KeyBank National Association 64,225 $2,900,000 $2,894,234 0.2%
147 Xxxx Xxxxx XX 00000 KeyBank National Association 33,700 $2,715,000 $2,715,000 0.1%
Orig Rem. Orig Rem.
Fee/ Amort. Amort. Term to Term to Interest Monthly
# Leasehold Term Term (1) Maturity (6) Maturity (1) (6) Rate Payment ARD (7)
--- ------------- ------------- ------------- ------------ ---------------- -------- -------- ---------
8 Fee 360 358 120 118 5.4500% $203,276 10/1/2014
10 Fee 360 360 120 120 5.9100% $166,257 N/A
12 Fee 360 360 120 118 5.5500% $151,296 N/A
16 Fee 360 359 120 119 5.4800% $108,775 N/A
20 Fee/Leasehold 360 359 120 119 5.4500% $101,638 11/1/2014
22 Fee 360 360 120 118 5.5500% $98,485 N/A
29 Fee 360 359 120 119 5.7700% $89,774 11/1/2014
35 Fee 351 350 111 110 5.7600% $84,429 2/1/2014
42 Fee 360 360 120 119 5.7300% $67,291 N/A
43 Fee/Leasehold 360 360 120 119 5.2800% $63,856 N/A
45 Fee Interest Only Interest Only 60 60 5.2150% $47,727 N/A
51 Fee 360 359 120 119 5.7400% $58,294 N/A
57 Fee 360 359 120 119 5.3870% $49,343 N/A
59 Fee 360 360 120 118 5.5500% $47,958 N/A
68 Fee 360 360 84 82 5.2700% $40,401 N/A
80 Fee 360 358 84 82 5.2300% $33,609 10/1/2011
87 Fee 360 360 120 119 5.7400% $30,604 N/A
93 Fee 360 360 120 117 5.6600% $27,738 N/A
98 Fee 360 360 120 118 5.5500% $25,406 N/A
117 Fee 360 360 120 120 5.5200% $20,144 N/A
130 Fee 360 360 120 120 5.5700% $18,310 N/A
137 Fee 360 359 120 119 5.9000% $17,794 N/A
140 Fee 300 299 120 119 6.2000% $19,369 N/A
143 Fee 360 358 120 118 5.6200% $16,685 N/A
147 Fee 360 360 120 120 5.9000% $16,104 N/A
Primary Master Administration Letter of
# Defeasance (9) Servicing Fee Servicing Fee Fees Credit
--- -------------- ------------- ------------- -------------- ----------
8 Yes 0.03% 0.02% 0.0513% $2,000,000
10 Yes 0.03% 0.02% 0.0513% N/A
12 Yes 0.03% 0.02% 0.0513% N/A
16 Yes 0.03% 0.02% 0.0513% N/A
20 Yes 0.03% 0.02% 0.0513% N/A
22 Yes 0.03% 0.02% 0.0513% N/A
29 Yes 0.03% 0.02% 0.1013% $250,000
35 Yes 0.03% 0.02% 0.0513% N/A
42 No 0.03% 0.02% 0.1013% N/A
43 Yes 0.03% 0.02% 0.0513% $250,000
45 No 0.03% 0.02% 0.0513% N/A
51 Yes 0.03% 0.02% 0.0513% N/A
57 No 0.03% 0.02% 0.1013% N/A
59 Yes 0.03% 0.02% 0.0513% N/A
68 Yes 0.03% 0.02% 0.0513% N/A
80 Yes 0.03% 0.02% 0.0513% N/A
87 Yes 0.03% 0.02% 0.1013% N/A
93 Yes 0.03% 0.02% 0.1013% N/A
98 Yes 0.03% 0.02% 0.0513% N/A
117 Yes 0.03% 0.02% 0.1013% N/A
130 Yes 0.03% 0.02% 0.0513% N/A
137 No 0.03% 0.02% 0.0513% N/A
140 No 0.03% 0.02% 0.0513% N/A
143 Yes 0.03% 0.02% 0.0513% N/A
147 No 0.03% 0.02% 0.0513% N/A
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:
Exception to Section (ix):
Modification agreements were recently executed with respect to: (a) the
Replacement Reserve Escrow and Security Agreement for Loan No.
10024962/Orangefair Marketplace and (b) the Promissory Note, the Deed of
Trust and the Tenant Improvement/Leasing Commission Escrow and Security
Agreement for Loan Xx. 00000000/Xxxxxxxxxxx xx Xxxxxxx Xxxxx.
Exception to Section (xx):
Correspondent fees are payable with respect to each of the following Mortgage
Loans:
010023795 Xxxxxxxxx Office Complex
010024575 Sorrento Research Facility
010024311 Clifty Crossing
010024804 National Highway 54/Self Storage
010024942 Stevens Creek Office Center
010025232 Colonial Court
Exception to Section (xxiii):
With respect to each of the following Mortgage Loans, the insurer that issued
the fire and extended perils insurance policy met the requirements of the
Pooling and Servicing Agreement regarding an S&P rating, but did not meet the
requirements regarding a Xxxxx'x rating:
Mortgage Loan Carrier
10023795 / Xxxxxxxxx Office Complex Zurich Insurance Co.
10024063 / Shoppes of Paradise Isle Shopping Center Westchester Surplus
Lines Insurance Co.
10024760 / Polaris Professional Center Zurich Insurance Co.
With respect to each of the following Mortgage Loans, the insurer that issued
the fire and extended perils insurance policy did not meet the requirements of
the Pooling and Servicing Agreement regarding an S&P rating or a Xxxxx'x rating:
Mortgage Loan Carrier
10024703 / Warner View Corporate Center Sequoia Insurance Co.
10024810 / LaGuardia Self Storage CNA Insurance Co.
10025232 / Colonial Court Hartford Insurance Co.
With respect to each of the following Mortgage Loans, the insurer that issued
the fire and extended perils insurance policy is not rated by S&P or Xxxxx'x:
Mortgage Loan Carrier
10024609 / Washington Townhomes Apts. Axis Surplus Insurance Co.
10024926 / Valley North Center Great American Alliance
Insurance Co.
Exception to Section (xxxi):
The following exceptions are made with respect to Loan Xx. 00000000/Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxx:
(B) The lessor under the related ground lease has agreed that the ground
lease may not be amended, modified, canceled or terminated without the prior
written consent of the lender, however, the lessor has not specifically agreed
that any such action without such consent is not binding on the lender, its
successors or assigns.
(J) The respective ground lease requires a third party to hold the
proceeds as trustee for both lender and lessor. The proceeds are to be released
by the trustee for restoration of the Mortgaged Property.
(K) The respective ground lease requires a third party to hold the
proceeds as trustee for both lender and lessor. The proceeds are to be released
by the trustee for restoration of the Mortgaged Property.
(L) The respective ground lease does not specify that the lessor must
enter into a new lease upon either (i) termination of the ground lease following
a monetary default or (ii) termination of the ground lease following rejection
of the ground lease in a bankruptcy proceeding. However, the ground lease may
not be terminated without the consent of lender.
Exception to Section (xxxviii):
With respect to Loan Nos. 10024609/Washington Townhomes, and 100249421/Stevens
Creek Office Center, the related borrower may incur additional debt secured by
the related mortgaged real property on a subordinate basis upon the written
approval of the holder of the related mortgage and the satisfaction of various
specified conditions, including specified debt-service-coverage and
loan-to-value ratios, execution of an intercreditor and subordination agreement
by an institutional lender, execution of a lockbox agreement and, if required,
receipt of rating agency confirmation.
With respect to Loan Nos. 10024311/Clifty Crossing Shopping Center,
00000000/Xxxxxxxxxx Xxxxxxxxxxx, and 10024973/North Eastwood, the
partners/members of a related borrower may pledge their respective ownership
interests in the borrower, upon the prior written consent of the holder of the
related mortgage and the satisfaction of various specified conditions, including
specified debt service coverage and loan-to-value ratios, execution of an
intercreditor and subordination agreement by an institutional mezzanine lender,
establishment of a lockbox arrangement and receipt of rating agency confirmation
if required.
With respect to Loan No. 10021984/Marketplace at Concord Xxxxx, the holders of
direct or indirect ownership interests in the related borrower may obtain
mezzanine financing secured by such ownership interests upon the prior approval
of the holder of the related mortgage and the satisfaction of various specified
conditions, including specified debt service coverage and loan-to-value ratios,
execution of an intercreditor agreement by a qualified lender and establishment
of a lockbox arrangement.
Exception to Section (xxxix):
With respect to Loan No. 10024760/Polaris Professional Center, the Mortgage Loan
Documents do not include an express covenant by the borrower that it shall
remain in material compliance with all material licenses, permits and other
legal requirements necessary and required to conduct its business, but the
Mortgage Loan Documents do include a covenant by the borrower that it will
comply with all laws, ordinances and regulations governing the use of the
Mortgaged Property.
Exception to Section (li):
With respect to Marketplace at Concord Xxxxx, Garden Ridge, a tenant of the
Mortgaged Property that occupies more than 10% of the property is a debtor in a
pending bankruptcy proceeding.
Exception to Section (lvi):
With respect to Loan Nos. 10021984/Marketplace at Concord Xxxxx, 10024311/Clifty
Crossing, 10024941/Dekalb County Shopping Center, 00000000/Xxxxxxxxxx
Xxxxxxxxxxx and 10024973/North Eastwood, the Mortgage Rate increases on the
Anticipated Repayment Date by the greater of (i) the initial Mortgage Rate plus
2% or (ii) the treasury rate plus 2%.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
(i) Immediately prior to the sale, transfer and assignment to the
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) RESERVED.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Depositor constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(v) As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan Documents,
the Borrower, lessee and/or operator was in possession of all licenses, permits,
and authorizations then required for use of the Mortgaged Property which were
valid and in full force and effect as of the origination date;
(vi) Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related Borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related Borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no valid offset, defense, counterclaim, or right of
rescission available to the related Borrower with respect to such Note,
Mortgage, Assignment of Leases and other agreements, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(vii) Each related Assignment of Leases creates a valid first
priority collateral assignment of, or a valid first priority lien or security
interest in, certain rights under the related lease or leases, subject only to a
license granted to the related Borrower to exercise certain rights and to
perform certain obligations of the lessor under such lease or leases, including
the right to operate the related leased property, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law); no person other than the related Borrower
owns any interest in any payments due under such lease or leases that is
superior to or of equal priority with the lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to the
Depositor and related assignment of the Assignment of Leases, if any, or
assignment of any other agreement executed by or for the benefit of the related
Borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from the Seller to the Depositor constitutes the legal, valid and
binding assignment from the Seller to the Depositor, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
mortgage file, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded and (B) each related Mortgaged Property has
not been released from the lien of the related Mortgage in any manner which
materially interferes with the security intended to be provided by such
Mortgage;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are insured against by a lender's title insurance policy (as described
below). A UCC Financing Statement has been filed and/or recorded (or sent for
filing or recording) in all places necessary to perfect a valid security
interest in the personal property necessary to operate the Mortgaged Property;
any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid
and enforceable lien on property described therein, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforcement of creditors' rights or by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee and/or leasehold interest of the related Borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller and its successors and assigns as
to such lien, subject only to (A) the lien of current real property taxes,
ground rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (B) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially interferes with the current use of
the Mortgaged Property or the security intended to be provided by such Mortgage
or with the Borrower's ability to pay its obligations when they become due or
the value of the Mortgaged Property and (C) the exceptions (general and
specific) and exclusions set forth in such policy, none of which, individually
or in the aggregate, materially interferes with the current general use of the
Mortgaged Property or materially interferes with the security intended to be
provided by such Mortgage or with the related Borrower's ability to pay its
obligations when they become due or the value of the Mortgaged Property (items
(A), (B) and (C) collectively, "Permitted Encumbrances"); the premium for such
policy was paid in full; such policy (or if it is yet to be issued, the coverage
to be afforded thereby) is issued by a title insurance company licensed to issue
policies in the state in which the related Mortgaged Property is located (unless
such state is Iowa) and is assignable (with the related Mortgage Loan) to the
Depositor and the Trustee without the consent of or any notification to the
insurer, and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have been made under such
policy and the Seller has not undertaken any action or omitted to take any
action, and has no knowledge of any such act or omission, which would impair or
diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related mortgage file;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted) or reserves have been established
to cover the costs to remediate such damage and, as of the closing date for each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, there is no
proceeding pending for the total or partial condemnation of such Mortgaged
Property that would have a material adverse effect on the use or value of the
Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xviii) Each Mortgage Loan is a whole loan and contains no equity
participation by Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither the Seller nor to the Seller's knowledge, any
originator, committed any fraudulent acts during the origination process of any
Mortgage Loan, and no other person has been granted or conveyed the right to
service the Mortgage Loans or receive any consideration in connection therewith,
except as provided in the Pooling and Servicing Agreement or any permitted
subservicing agreements;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith and all such escrows and deposits are being
conveyed by the Seller to the Depositor and identified as such with appropriate
detail;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all premiums on such insurance policies required to be paid as of
the date hereof have been paid; such insurance policies require prior notice to
the insured of termination or cancellation, and no such notice has been received
by the Seller; such insurance names the lender under the Mortgage Loan and its
successors and assigns as a named or additional insured; each related Mortgage
Loan obligates the related Borrower to maintain all such insurance and, at such
Borrower's failure to do so, authorizes the lender to maintain such insurance at
the Borrower's cost and expense and to seek reimbursement therefor from such
Borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan; and, to the Seller's
knowledge, there is no (A) non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or (B) event (other than
payments due but not yet delinquent) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B) materially
and adversely affects the use or value of the Mortgage Loan or the related
Mortgaged Property; provided, however, that this representation and warranty
does not address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by any
other representation or warranty made by the Seller in any of the other
paragraphs of this Exhibit A; and provided, further that a breach by the
Borrower of any representation or warranty contained in any Mortgage Loan
Document shall not constitute a non-monetary default, breach, violation or event
of acceleration for purposes of this representation and warranty if the subject
matter of such representation or warranty contained in any Mortgage Loan
Document is also covered by any other representation or warranty made by the
Seller in this Exhibit A;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or (B)
as the enforcement of the Mortgage may be limited by bankruptcy, insolvency,
reorganization, moratorium, redemption or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). To the
Seller's knowledge, no Borrower is a debtor in a state or federal bankruptcy or
insolvency proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related Borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report and, with respect to certain Mortgage Loans, a Phase II
environmental report, was conducted by a reputable environmental consulting firm
in connection with such Mortgage Loan, which report did not indicate any
material non-compliance with applicable environmental laws or material existence
of hazardous materials or, if any material non-compliance or material existence
of hazardous materials was indicated in any such report, then at least one of
the following statements is true: (A) funds reasonably estimated to be
sufficient to cover the cost to cure any material non-compliance with applicable
environmental laws or material existence of hazardous materials have been
escrowed by the related Borrower and held by the related mortgagee; (B) an
operations or maintenance plan has been required to be obtained by the related
Borrower; (C) the environmental condition identified in the related
environmental report was remediated or abated in all material respects prior to
the date hereof; (D) a no further action or closure letter was obtained from the
applicable governmental regulatory authority (or the environmental issue
affecting the related Mortgaged Property was otherwise listed by such
governmental authority as "closed"); (E) such conditions or circumstances
identified in the Phase I environmental report were investigated further and
based upon such additional investigation, an environmental consultant
recommended no further investigation or remediation; (F) a party with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related mortgage file. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impairment environmental insurance policy
was obtained with respect to each such Mortgage Loan and is a part of the
related mortgage file. Each of such environmental insurance policies is in full
force and effect, the premiums for such policies have been paid in full and the
Trustee is named as an insured under each of such policies. To the best of the
Seller's knowledge, in reliance on such environmental reports and except as set
forth in such environmental reports, each Mortgaged Property is in material
compliance with all applicable federal, state and local environmental laws, and
to the best of the Seller's knowledge, no notice of violation of such laws has
been issued by any governmental agency or authority, except, in all cases, as
indicated in such environmental reports or other documents previously provided
to the Rating Agencies; and the Seller has not taken any action which would
cause the Mortgaged Property to not be in compliance with all federal, state and
local environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders), each Mortgage Loan with a Stated Principal Balance of over
$20,000,000 also contains the provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without the consent of
the holder of the Mortgage, (and the Mortgage requires the mortgagor to pay all
fees and expenses associated with obtaining such consent) a majority interest in
the related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which the Seller has obtained title insurance against
losses arising therefrom or that do not materially and adversely affect the use
or value of such Mortgaged Property. No improvements on adjoining parcels
encroach onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage or the related Borrower's operations at the
Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the mortgage loan schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
(xxxi) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, and
the related Mortgage does not also encumber the related lessor's fee interest in
such Mortgaged Property, based upon the terms of the ground lease and any
estoppel received from the ground lessor, the Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground lease has
been duly recorded. The ground lease permits the interest of the lessee to
be encumbered by the related Mortgage and does not restrict the use of the
related Mortgaged Property by such lessee, its successors or assigns in a
manner that would adversely affect the security provided by the related
Mortgage. To the Seller's best knowledge, there has been no material
change in the terms of the ground lease since its recordation, except by
any written instruments which are included in the related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be
amended, modified, canceled or terminated without the prior written
consent of the lender and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the lender) that extends not less
than 20 years beyond the stated maturity of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, subject to Permitted Encumbrances and liens that encumber the
ground lessor's fee interest;
(E) The ground lease is assignable to the lender under the ground
lease and its assigns without the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full force and
effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any
existing condition which, but for the passage of time or giving of notice,
would result in a default under the terms of the ground lease;
(G) The ground lease or an ancillary agreement between the lessor
and the lessee, which is part of the Mortgage File, requires the lessor to
give notice of any default by the lessee to the lender;
(H) A lender is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other
action so long as the lender is proceeding diligently) to cure any default
under the ground lease which is curable after the receipt of notice of any
default, before the lessor may terminate the ground lease. All rights of
the lender under the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on behalf of the
lender;
(I) The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by an institutional
investor. The lessor is not permitted to disturb the possession, interest
or quiet enjoyment of any subtenant of the lessee in the relevant portion
of the Mortgaged Property subject to the ground lease for any reason, or
in any manner, which would adversely affect the security provided by the
related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied
either to the repair or restoration of all or part of the related
Mortgaged Property, with the lender or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case
of condemnation awards, the ground lessor may be entitled to a portion of
such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in respect of a
total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
as provided by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan). Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have an
option to terminate or modify the ground lease without the prior written
consent of the lender as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new
lease upon termination of the ground lease for any reason, including
rejection of the ground lease in a bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related mortgage file that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) With respect to Mortgage Loans that are
cross-collateralized or cross-defaulted, all other loans that are
cross-collateralized or cross-defaulted with such Mortgage Loans are being
transferred to the Depositor hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (1) and (2) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, this Exhibit A or in the Exception Report to
this Agreement;
(xxxvii) The Mortgage Loan Documents executed in connection with
each Mortgage Loan having an original principal balance in excess of $4,000,000
require that the related Borrower be a single-purpose entity (for this purpose,
"single-purpose entity" shall mean an entity, other than an individual, having
organizational documents which provide substantially to the effect that it is
formed or organized solely for the purpose of owning and operating one or more
Mortgaged Properties, is prohibited from engaging in any business unrelated to
such property and the related Mortgage Loan, does not have any assets other than
those related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan);
(xxxviii) Each Mortgage Loan prohibits the related Borrower from
mortgaging or otherwise encumbering the Mortgaged Property without the prior
written consent of the mortgagee or the satisfaction of debt service coverage or
similar criteria specified therein and, except in connection with trade debt and
equipment financings in the ordinary course of Borrower's business, from
carrying any additional indebtedness, except, in each case, liens contested in
accordance with the terms of the Mortgage Loans or, with respect to each
Mortgage Loan having an original principal balance of less than $4,000,000, any
unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the Borrower to maintain flood insurance,
or at such Borrower's failure to do so, authorizes the Lender to maintain such
insurance at the cost and expense of the Borrower;
(xlii) To the knowledge of the Seller, with respect to each Mortgage
which is a deed of trust, a trustee, duly qualified under applicable law to
serve as such, currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law or may be substituted in
accordance with applicable law by the related mortgagee, and except in
connection with a trustee's sale after a default by the related Borrower, no
fees are payable to such trustee;
(xliii) RESERVED.
(xliv) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of the Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any Borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such Borrower's ability to perform under the
related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the related
Borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to the Seller's knowledge, been
received from any person other than, or on behalf of, the related Borrower, for,
or on account of, payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) Except as disclosed in the Exception Report to this
Agreement or the Prospectus Supplement with respect to the Crossed Mortgage
Loans and Mortgage Loans secured by multiple Mortgaged Properties, no Mortgage
Loan requires the lender to release any portion of the Mortgaged Property from
the lien of the related Mortgage except upon (A) payment in full or defeasance
of the related Mortgage Loan, (B) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, (C) releases of unimproved out-parcels or (D) releases of
portions of the Mortgaged Property which will not have a material adverse effect
on the use or value of the collateral for the related Mortgage Loan;
(xlix) Except as provided in paragraphs (xxxi)(J) and (K) above, any
insurance proceeds in respect of a casualty loss or taking will be applied
either to (A) the repair or restoration of all or part of the related Mortgaged
Property, with, in the case of all casualty losses or takings in excess of a
specified amount or percentage that a prudent commercial lender would deem
satisfactory and acceptable, the lender (or a trustee appointed by it) having
the right to hold and disburse such proceeds as the repair or restoration
progresses (except in any case where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender) or (B) to the payment of the outstanding
principal balance of such Mortgage Loan together with any accrued interest
thereon;
(l) Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the related Mortgaged Property and
each Form UCC-2 or UCC-3 assignment, if any, of such financing statement to the
Seller was, and each Form UCC-3 assignment, if any, of such financing statement
in blank which the Trustee or its designee is authorized to complete (but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is, in suitable form for filing in the
filing office in which such financing statement was filed;
(li) To the Seller's knowledge, (A) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders, the improvements
located on or forming part of each Mortgaged Property comply with applicable
zoning laws and ordinances, or constitute a legal non-conforming use or
structure or, if any such improvement does not so comply, such non-compliance
does not materially and adversely affect the value of the related Mortgaged
Property. With respect to any Mortgage Loan with a Stated Principal Balance as
of the Closing Date of over $10,000,000, if the related Mortgaged Property does
not so comply, to the extent the Seller is aware of such non-compliance, it has
required the related Borrower to obtain law and ordinance insurance coverage in
amounts customarily required by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision) and all
Prepayment Premiums and Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury Regulation Section
1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the Borrower is required to provide an opinion of counsel
that the Trustee has a perfected security interest in such collateral prior to
any other claim or interest, (F) the Borrower is required to pay all Rating
Agency fees associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and opinions of
counsel, (G) with respect to any Significant Trust Mortgage Loan (as defined in
the Pooling and Servicing Agreement), the Borrower is required to provide an
opinion of counsel that such defeasance will not cause any REMIC created under
the Pooling and Servicing Agreement to fail to qualify as a REMIC for federal or
applicable state tax purposes and (H) with respect to any Significant Trust
Mortgage Loan (as defined in the Pooling and Servicing Agreement), the Borrower
must obtain Rating Agency confirmation from each Rating Agency that the
defeasance would not result in such Rating Agency's withdrawal, downgrade or
qualification of the then current rating of any class of Certificate rated by
such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder shall be liable to the Seller for any losses
incurred by the Seller due to (A) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
Borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Master Servicer; and (D) any cash flow from
the related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvii) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same Borrower and to Borrowers
that are affiliates, accounted for more than 5.0% of the aggregate of the Stated
Principal Balances of all of the Mortgage Loans, all the mortgage loans sold to
the Depositor by Column Financial, Inc. ("Column") pursuant to that certain
Mortgage Loan Purchase Agreement dated as of December 1, 2004 between the
Depositor and Column, all the mortgage loans sold to the Depositor by LaSalle
Bank National Association ("LaSalle") pursuant to that certain Mortgage Loan
Purchase Agreement dated as of December 1, 2004 between the Depositor and
LaSalle, and 50% of one co-originated mortgage loan sold to the Depositor by
Xxxxxx Brothers Holdings Inc. ("Xxxxxx") pursuant to that certain Mortgage Loan
Purchase Agreement dated as of December 1, 2004 between the Depositor and Xxxxxx
; and
(lviii) The Seller has delivered to the Trustee or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
_________________________________, being duly sworn, deposes and
says:
1. that he is an authorized signatory of 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 2004-C5 (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 [ ], 2004
