EXHIBIT 4.4
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
LASALLE BANK 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 LaSalle 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
Exhibit C Mortgage Loans with Ground Lease
Exhibit D Pooling and Servicing Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of December 1, 2004, is made by and between LASALLE BANK NATIONAL ASSOCIATION, a
national banking association ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein, in the Pooling and Servicing Agreement in the exact form as
attached hereto as Exhibit D.
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 after the
Cut-off Date with respect to the Mortgage Loans 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, when appropriate, 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 or executed escrow instructions
binding on the title insurer irrevocably obligating the title insurer to issue
such title insurance policy, 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 and adversely 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 (the "Extended Resolution Period").
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 (including, if permitted under this Section 7, the Extended
Resolution 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 (xxiii) set forth on Exhibit A hereto to the extent
such breach relates to nonpayment of such fees. 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 the
last sentence in representation (xxvii) 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. In addition, Depositor is not in default with respect to any order or
decree that would materially and adversely affect the ability of Depositor to
perform its obligations under 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 at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Spevok, Telecopy No.: (312)
904-0900, 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. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW, THE SELLER AND THE DEPOSITOR EACH HEREBY IRREVOCABLY (I) SUBMITS
TO THE JURISDICTION OF ANY NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK
CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II)
AGREES THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE
FULLEST POSSIBLE EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other 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.
LASALLE BANK NATIONAL ASSOCIATION,
as Seller
By:____________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:____________________________________
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of December 1, 2004, between LaSalle Bank National Association (the "Seller")
and Credit Suisse First Boston Mortgage Securities Corp. (the "Depositor").
Capitalized terms used herein without definition have the meanings given them in
or by reference in the Agreement or, if not defined in the Agreement, in the
Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Borrower" means the borrower under a Mortgage Loan.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated 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, in the exact form as
attached hereto as Exhibit D.
"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
---- ------- ---------- ---------------------------------------------------
4 0 Xxxxxxxx Xxxx
Xxxxxxxx Mall B-1 Loan (not part of the trust fund)
Xxxxxxxx Xxxx X-0 Loan (not part of the trust fund)
15 1 City Centre Place
19 2 Town Hall Terrace
23 1 Pleasant Hill Square
26 1 Sunshine Key
31 2 Sanctuary of Woodshire
34 1 FedEx - Midway
FedEx - Midway B Loan (not part of the trust fund)
41 1 Brunswick Plaza West
46 2 Campus View Apts
47 1 Sunburst North Ft. Xxxxx
54 1 Silver Dollar
56 2 Campus Village
58 2 Blackthorn Apartments
64 1 222 & 000 Xxxxxxxx Xxxxxx
64a 1 000 Xxxxxxxx Xxxxxx
64b 1 000 Xxxxxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxxxxxxx
00 0 Pecos Point
81 2 Pacific Dunes
00 0 Xxxxxxx Xxxxxx Xxxxxxxx
00 0 Chateaux Fall Creek
86 1 Business Park & Xxxxxx Xxxxx
00 0 Xxxxx Xxxxxx Xxxxxxx MHP
90 1 Carlsbad Courtyard
000 0 Xxxxxxxxx - Xxxxx Xxxxx, XX
104 1 Walgreens - Casper, WY
106 1 Walgreens - Greenville (Xxxxx)
109 1 Wilshire Westgate Shopping Xxxxxx
000 0 Xxxxxx xx Xxxx Xxxxx
000 0 Xxxxx Xxxx MHR & RV
114 1 Walgreens - Xxxxxx, CT
118 2 Marina Apartments Portfolio
118a 2 00 Xxxxxxxxx Xxxxxxxxx
118b 2 0000 Xxxxxxxxx Xxxxxx
118c 2 15 & 27 Alhambra
119 1 West River Crossing
000 0 Xxxxxxxxx - Xxxxx Xxxxxx, XX
124 1 CVS - Bessemer
125 1 South Melrose Xxxxxx
000 0 Xxxxxxxx Xxxxx
000 0 Xxxxxxx Xxxxxxx II Apartments
134 1 Walgreens - Miami, OK
135 1 Hunter's Retreat Professional Xxxxxx
000 0 Xxx Xxxx Xxxxxxxxxx
000 0 Xxxxxxx Xxxx II Office
144 1 Walgreens - Xxxxx Xxxx
000 0 Xxxxxxx Xxxxx
149 0 Xxxxx Xxxxxxx Xxxxxx
000 0 Xxxxxxxxx - Xxxxxxx, XX
151 1 Walgreens - Long Beach
155 2 The Mill MHC
157 0 Xxxxxxxx Xxxxxxx Xxxxxxxxxx
000 0 Xxxxx Xxxxx Plaza
164 1 Sunburst Florida Keys
166 1 Fed Ex Ground Package
179 0 Xxx Xxxxx Xxxxxxxxxx
000 0 Xxxxxxxxxxx Xxxxxxx Trade Court Shoppes
185 2 Xxxxx Xxxx Apartments
188 1 Xxxxx Retail Plaza Center
198 1 Lakes IV Apartments
202 2 Xxxxxxx Village I Apartments
204 1 South University Center
215 1 West Little York Mini Storage
216 2 Hillcrest Apartment Community
220 0 Xxxxx Xxxxx Xxxxxxxxxx
Xxx Xxxxxxxx
# Xxxxxxx Xxxx Xxxxx Code Property Seller
---- --------------------------------------------------- ---------------- ----- ----- ---------------------------------
4 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 LaSalle Bank National Association
15 000 Xxxxx 0xx Xxxxxx Xxx Xxxxx XX 00000 LaSalle Bank National Association
19 0000 Xxxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 LaSalle Bank National Association
23 0000-0000 Xxxxxxxx Xxxx Xxxx Xxxxxx XX 00000 LaSalle Bank National Association
26 00000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
31 0000 Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxxx XX 00000 LaSalle Bank National Association
34 0000 Xxxxx Xxxxx XxXxxx XX 00000 LaSalle Bank National Association
41 000 Xxxxxxx Xxxx Xxxx XX 00000 LaSalle Bank National Association
46 000 Xxxxxx Xxxx Xxxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
47 0000 Xxxxxxxx Xxxx Xxxxx Xxxx Xxxxx XX 00000 LaSalle Bank National Association
54 00000 Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000 LaSalle Bank National Association
56 0000 Xxxx Xxxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 LaSalle Bank National Association
58 0000 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 LaSalle Bank National Association
64 LaSalle Bank National Association
64a 000 Xxxxxxxx Xxxxxx Xxxx Xxxx Xxxxx XX 00000
64b 000 Xxxxxxxx Xxxxxx Xxxx Xxxx Xxxxx XX 00000
69 00000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
78 0000 Xxxxx Xxxxx Xxxx Xxx Xxxxx XX 00000 LaSalle Bank National Association
81 0000 Xxxxxx Xxxx Xxxxx Xxxxxx XX 00000 LaSalle Bank National Association
82 0000 Xxx Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 LaSalle Bank National Association
84 00000 Xxxx Xxxxx Xxxxxx XX 00000 LaSalle Bank National Association
86 0000 Xxxxxxxx Xxxx Xxxxxx & 00000 Xxxxxx Xxxxx Xxxx Xxx Xxxxx XX 00000 LaSalle Bank National Association
89 0000 Xxxx 000xx Xxxxxx Xxxxxx XX 00000 LaSalle Bank National Association
90 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
103 0000 Xxxxxx Xxxxxx Xxxxx Xxxxx XX 00000 LaSalle Bank National Association
104 0000 XX Xxxxxx Xxxxxx XX 00000 LaSalle Bank National Association
106 000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000 LaSalle Bank National Association
109 7500 and 0000 Xxxx Xxxxxxxx Xxxxxx Xxxxx XX 00000 LaSalle Bank National Association
111 000 Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxxx XX 00000 LaSalle Bank National Association
113 000 Xxxxx Xxxx Xxxx Xxxxxxxxxxxxx XX 00000 LaSalle Bank National Association
114 000 Xxxxxxxxxxxx Xxxx Xxxxxx XX 00000 LaSalle Bank National Association
118 LaSalle Bank National Association
118a 00 Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000
118b 0000 Xxxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
118c 15 & 00 Xxxxxxxx Xxx Xxxxxxxxx XX 00000
119 0000 Xxxxxxxxx Xxxx Xxxxxx XX 00000 LaSalle Bank National Association
121 00000 Xxxxxxx 00 Xxxxx Xxxxxx XX 00000 LaSalle Bank National Association
124 0000 Xxxxxx Xxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
125 000 Xxxxx Xxxxxxx Xxxxx Xxxxx XX 00000 LaSalle Bank National Association
126 000-000 Xxxxxx Xxxxxx Xxxxxxx XX 00000 LaSalle Bank National Association
131 000 Xxxxx Xxxx Xxxx Xxxxxxxxxxx XX 00000 LaSalle Bank National Association
134 000 Xxxxx Xxxx Xxxxxx Xxxxx XX 00000 LaSalle Bank National Association
135 0000 Xxxxxxx Xxxxx Xxxxxxxxxx XX 00000 LaSalle Bank National Association
138 0000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
142 0000 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 LaSalle Bank National Association
144 000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 LaSalle Bank National Association
145 00000 Xxxx Xxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000 LaSalle Bank National Association
149 0000 00xx Xxxxxx Xxxx Xxxx Xxxxx XX 00000 LaSalle Bank National Association
150 0000 00xx Xxxxxx Xxxxxxx XX 00000 LaSalle Bank National Association
151 0000 Xxxx Xxxxxxx Xxxxxx Xxxx Xxxxx XX 00000 LaSalle Bank National Association
155 0000 Xxxxxxx 00 Xxx XX 00000 LaSalle Bank National Association
157 000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 LaSalle Bank National Association
158 000 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 LaSalle Bank National Association
164 000 Xxxxxxx Xxxx Xxxxxxxxx Xxx XX 00000 LaSalle Bank National Association
166 000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
179 000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 LaSalle Bank National Association
184 000-000 Xxxxx Xxxxx Xxxxxxxxxxx XX 00000 LaSalle Bank National Association
185 000 Xxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
188 1835-1975 Xxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 LaSalle Bank National Association
198 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000 LaSalle Bank National Association
202 000 Xxxxx Xxxx Xxxx Xxxxxxxxxxx XX 00000 LaSalle Bank National Association
204 0000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 LaSalle Bank National Association
215 0000 Xxxx Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000 LaSalle Bank National Association
216 0000-00 Xx. Xxxxxxx Xxxx & 0000-00 Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 LaSalle Bank National Association
220 2113 - 00 Xxxxxxxx Xxxxx Xxxxxxxxxxx XX 00000 LaSalle Bank National Association
Sq. Ft./ Percentage of Orig Rem. Orig
Rooms/ Original Cut-off Initial Fee/ Amort. Amort. Term to
# Pads Balance Balance (1) Pool Balance Leasehold Term Term (1) Maturity (6)
---- -------- ----------- ----------- ------------- ------------- ------------- ------------- ------------
4 557,191 $53,700,000 $53,700,000 2.9% Fee/Leasehold 360 360 60
15 103,199 $21,500,000 $21,500,000 1.2% Fee 360 360 120
19 390 $19,000,000 $19,000,000 1.0% Fee 336 336 116
23 282,137 $17,120,000 $17,120,000 0.9% Fee Interest Only Interest Only 60
26 409 $16,540,000 $16,521,828 0.9% Fee 360 359 120
31 182 $15,000,000 $15,000,000 0.8% Fee 360 360 120
34 156,554 $14,480,000 $14,480,000 0.8% Fee 360 360 123
41 115,348 $11,925,000 $11,925,000 0.6% Fee/Leasehold 360 360 120
46 172 $10,400,000 $10,400,000 0.6% Fee 360 360 120
47 733 $10,390,000 $10,378,585 0.6% Fee 360 359 120
54 382 $9,160,000 $9,149,993 0.5% Fee 360 359 120
56 60 $9,000,000 $8,990,019 0.5% Fee 360 359 120
58 192 $8,700,000 $8,700,000 0.5% Fee 360 360 117
64 $7,700,000 $7,700,000 0.4% 360 360 121
64a 32,281 $4,500,000 $4,500,000 Fee
64b 23,708 $3,200,000 $3,200,000 Fee
69 43,074 $7,224,000 $7,224,000 0.4% Fee 360 360 120
78 160 $6,200,000 $6,188,149 0.3% Fee 360 358 84
81 213 $6,025,000 $6,025,000 0.3% Fee 360 360 120
82 42,637 $5,900,000 $5,900,000 0.3% Fee 240 240 120
84 115 $5,680,000 $5,680,000 0.3% Fee 360 360 120
86 73,481 $5,550,000 $5,550,000 0.3% Fee 360 360 120
89 236 $5,100,000 $5,084,415 0.3% Fee 360 357 120
90 39,477 $5,000,000 $5,000,000 0.3% Fee 360 360 120
103 14,560 $4,100,000 $4,095,596 0.2% Fee 360 359 120
104 14,560 $4,085,000 $4,080,773 0.2% Fee 360 359 120
106 12,917 $3,980,000 $3,975,725 0.2% Fee 360 359 120
109 77,993 $3,923,506 $3,923,506 0.2% Fee 352 352 112
111 92 $3,800,000 $3,800,000 0.2% Fee 360 360 120
113 260 $3,600,000 $3,600,000 0.2% Fee 348 348 60
114 14,490 $3,600,000 $3,596,177 0.2% Fee 360 359 120
118 $3,500,000 $3,500,000 0.2% 240 240 240
118a 18 $1,456,693 $1,456,693 Fee
118b 18 $1,204,724 $1,204,724 Fee
118c 12 $838,583 $838,583 Fee
119 32,452 $3,500,000 $3,500,000 0.2% Fee Interest Only Interest Only 84
121 15,035 $3,412,500 $3,408,640 0.2% Fee 360 359 120
124 10,880 $3,375,000 $3,375,000 0.2% Fee 360 360 121
125 24,197 $3,300,000 $3,300,000 0.2% Fee 360 360 120
126 11 $3,300,000 $3,296,158 0.2% Fee 360 359 60
131 92 $3,200,000 $3,200,000 0.2% Fee 360 360 120
134 14,560 $3,128,000 $3,124,763 0.2% Fee 360 359 120
135 24,784 $3,030,000 $3,030,000 0.2% Fee 360 360 120
138 136 $3,000,000 $2,992,172 0.2% Fee 300 298 120
142 30,490 $3,000,000 $3,000,000 0.2% Fee 360 360 121
144 14,490 $2,900,000 $2,894,031 0.2% Fee 360 358 120
145 256 $2,835,000 $2,831,903 0.2% Fee 360 359 120
149 24,361 $2,700,000 $2,682,958 0.1% Fee 360 353 120
150 14,560 $2,660,000 $2,657,088 0.1% Fee 360 359 120
151 11,656 $2,650,000 $2,646,941 0.1% Fee/Leasehold 360 359 120
155 149 $2,450,000 $2,450,000 0.1% Fee 300 300 120
157 80 $2,400,000 $2,397,395 0.1% Fee 360 359 120
158 20,788 $2,370,000 $2,367,381 0.1% Fee 360 359 120
164 100 $2,050,000 $2,047,760 0.1% Fee 360 359 120
166 55,957 $2,000,000 $2,000,000 0.1% Fee 360 360 121
179 80 $1,750,000 $1,739,069 0.1% Fee 300 295 120
184 15,262 $1,600,000 $1,600,000 0.1% Fee 360 360 120
185 72 $1,600,000 $1,600,000 0.1% Fee 360 360 120
188 18,564 $1,500,000 $1,500,000 0.1% Fee 360 360 120
198 18 $1,360,000 $1,357,372 0.1% Fee 360 358 120
202 64 $1,300,000 $1,300,000 0.1% Fee 240 240 120
204 10,459 $1,280,000 $1,278,750 0.1% Fee 360 359 120
215 56,560 $1,000,000 $991,197 0.1% Fee 300 294 60
216 42 $980,000 $978,448 0.1% Fee 300 299 120
220 24 $800,000 $799,314 0.04% Fee 360 359 180
Rem.
Term to Interest Monthly Primary Master Administration
# Maturity (1) (6) Rate Payment ARD (7) Defeasance (9) Servicing Fee Servicing Fee Fees
---- ---------------- -------- -------- -------- -------------- ------------- ------------- --------------
4 60 4.4461% $269,071 N/A Yes 0.02% 0.01% 0.0313%
0.015%
0.015%
15 120 5.4200% $120,998 N/A Yes 0.02% 0.01% 0.0313%
19 115 5.4270% $110,101 N/A Yes 0.02% 0.01% 0.0313%
23 60 5.0400% $71,904 N/A No 0.02% 0.01% 0.0313%
26 119 5.4800% $93,705 N/A Yes 0.02% 0.01% 0.0313%
31 119 5.4200% $84,417 N/A Yes 0.02% 0.01% 0.0313%
34 122 5.8900% $85,794 2/1/2015 Yes 0.02% 0.01% 0.0313%
0.00%
41 119 5.4300% $67,186 N/A Yes 0.02% 0.01% 0.0313%
46 119 5.3440% $58,036 N/A Yes 0.02% 0.01% 0.0313%
47 119 5.4800% $58,863 N/A Yes 0.02% 0.01% 0.0313%
54 119 5.5100% $52,067 N/A Yes 0.02% 0.01% 0.0313%
56 119 5.4300% $50,706 N/A Yes 0.02% 0.01% 0.0313%
58 117 5.5710% $49,786 N/A Yes 0.02% 0.01% 0.0313%
64 121 5.3300% $42,902 N/A Yes 0.10% 0.01% 0.1113%
64a
64b
69 120 5.4850% $40,949 N/A Yes 0.02% 0.01% 0.0313%
78 82 5.8000% $36,379 N/A Yes 0.02% 0.01% 0.0313%
81 120 5.3350% $33,588 N/A Yes 0.02% 0.01% 0.0313%
82 120 5.7000% $41,255 N/A Yes 0.08% 0.01% 0.0913%
84 120 5.3200% $31,612 N/A Yes 0.02% 0.01% 0.0313%
86 120 5.4400% $31,304 N/A Yes 0.02% 0.01% 0.0313%
89 117 5.6400% $29,407 N/A Yes 0.02% 0.01% 0.0313%
90 120 5.7250% $29,099 N/A Yes 0.02% 0.01% 0.0313%
103 119 5.6000% $23,537 N/A Yes 0.05% 0.01% 0.0613%
104 119 5.7970% $23,961 N/A Yes 0.05% 0.01% 0.0313%
106 119 5.6000% $22,848 N/A Yes 0.02% 0.01% 0.0613%
109 112 5.5190% $22,524 N/A Yes 0.02% 0.01% 0.0313%
111 120 5.6500% $21,935 N/A Yes 0.02% 0.01% 0.0313%
113 60 5.2000% $20,053 N/A Yes 0.02% 0.01% 0.0313%
114 119 5.6610% $20,806 N/A Yes 0.08% 0.01% 0.0913%
118 240 5.7800% $24,633 N/A Yes 0.02% 0.01% 0.0313%
118a
118b
118c
119 83 4.8800% $14,233 N/A No 0.02% 0.01% 0.0313%
121 119 5.3250% $19,003 N/A Yes 0.02% 0.01% 0.0313%
124 121 5.5000% $19,163 N/A Yes 0.02% 0.01% 0.0313%
125 120 5.3900% $18,510 N/A Yes 0.02% 0.01% 0.0313%
126 59 5.1700% $18,060 N/A Yes 0.02% 0.01% 0.0313%
131 120 6.1100% $19,413 N/A Yes 0.02% 0.01% 0.0313%
134 119 5.7970% $18,348 N/A Yes 0.02% 0.01% 0.0313%
135 120 5.5900% $17,375 N/A Yes 0.06% 0.01% 0.0713%
138 118 6.2500% $19,790 N/A Yes 0.02% 0.01% 0.0313%
142 121 5.7990% $17,601 N/A Yes 0.08% 0.01% 0.0913%
144 118 5.4600% $16,393 N/A Yes 0.02% 0.01% 0.0313%
145 119 5.5100% $16,115 N/A Yes 0.02% 0.01% 0.0313%
149 113 6.0590% $16,290 N/A Yes 0.02% 0.01% 0.0313%
150 119 5.5000% $15,103 N/A Yes 0.06% 0.01% 0.0713%
151 119 5.2160% $14,578 N/A Yes 0.02% 0.01% 0.0313%
155 120 5.5270% $15,085 N/A Yes 0.02% 0.01% 0.0313%
157 119 5.5450% $13,695 N/A Yes 0.08% 0.01% 0.0913%
158 119 5.4500% $13,382 N/A Yes 0.02% 0.01% 0.0313%
164 119 5.5100% $11,653 N/A Yes 0.02% 0.01% 0.0313%
166 121 5.0960% $10,854 N/A Yes 0.02% 0.01% 0.0313%
179 115 6.4600% $11,772 N/A Yes 0.02% 0.01% 0.0313%
184 120 5.2330% $8,818 N/A Yes 0.02% 0.01% 0.0313%
185 120 5.1100% $8,697 N/A Yes 0.02% 0.01% 0.0313%
188 120 5.0900% $8,135 N/A Yes 0.02% 0.01% 0.0313%
198 118 5.7500% $7,937 N/A Yes 0.02% 0.01% 0.0313%
202 120 5.9000% $9,239 N/A Yes 0.02% 0.01% 0.0313%
204 119 6.1000% $7,757 N/A Yes 0.02% 0.01% 0.0313%
215 54 5.6260% $6,216 N/A Yes 0.02% 0.01% 0.0313%
216 119 5.3900% $5,954 N/A Yes 0.08% 0.01% 0.0913%
220 179 6.7700% $5,199 N/A Yes 0.02% 0.00% 0.0313%
Letter of
# Credit
---- ---------
4 N/A
15 N/A
19 N/A
23 N/A
26 N/A
31 N/A
34 N/A
41 N/A
46 N/A
47 N/A
54 N/A
56 N/A
58 N/A
64 N/A
64a
64b
69 N/A
78 N/A
81 N/A
82 N/A
84 N/A
86 N/A
89 N/A
90 N/A
103 N/A
104 N/A
106 N/A
109 N/A
111 N/A
113 N/A
114 N/A
118 N/A
118a
118b
118c
119 N/A
121 N/A
124 N/A
125 N/A
126 N/A
131 N/A
134 N/A
135 N/A
138 N/A
142 N/A
144 N/A
145 N/A
149 N/A
150 N/A
151 N/A
155 N/A
157 N/A
158 N/A
164 N/A
166 N/A
179 N/A
184 N/A
185 N/A
188 N/A
198 N/A
202 N/A
204 N/A
215 N/A
216 N/A
220 N/A
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
SCHEDULE V
EXCEPTIONS TO SELLER'S REPRESENTATIONS AND WARRANTIES*
Reference is made to the Representations and Warranties set forth in Exhibit A
attached hereto corresponding to the paragraph numbers set forth below:
Exceptions to Representation (ix)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
Walgreens - Rocky Mount, NC The Mortgaged Properties are subject
Walgreens - Casper, WY to the right of first refusal to
Walgreens - Greenville (Xxxxx) purchase the property in favor of
Walgreens - Apple Valley, CA Walgreens (the tenant).
Walgreens - Miami, OK
Walgreens - Cable Road
Walgreens - Lubbock, TX
Walgreens - Long Beach
--------------------------------------------------------------------------------
--------
* Seller has attempted to indicate the particular representation or warranty
(by reference to the Section in which such representation or warranty
appears) to which an exception primarily relates. Notwithstanding the
foregoing, each exception is intended to qualify each representation or
warranty to which it may relate, regardless whether such exception expressly
refers to the Section in which the applicable representation or warranty
appears.
For purposes of the MLPA and Exhibit A - Representations and Warranties of
Seller, Seller deems the term "commercial and multifamily" to include
manufactured housing communities.
In addition, all mortgage loan assignments and UCC financing statements
assignments were executed in favor of the Trustee and not the Purchaser.
Exceptions to Representation (xiv)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
Xxxxx Xxxx MHR & RV The property coverage is
provided with a 90% co-insurance
provision.
--------------------------------------------------------------------------------
Walgreens - Rocky Mount, NC Mortgagor may provide insurance
Walgreens - Casper,WY through its tenant and the tenant
Walgreens - Greenville (Xxxxx) (Walgreens)on the property has the
Walgreens - Vernon, CT right to self insure in lieu of third
Walgreens - Apple Valley, CA party insurance.
Walgreens - Miami, OK
Walgreens - Cable Road
Walgreens - Lubbock, TX
Walgreens - Long Beach
--------------------------------------------------------------------------------
Walgreens - Rocky Mount, NC Mortgagor is not required to obtain
Walgreens - Greenville (Xxxxx) business interruption insurance.
However, per the Walgreens lease, there
is no rent abatement and the Tenant is
not entitled to terminate after a
casualty until after the 25th lease
year.
--------------------------------------------------------------------------------
Walgreens - Vernon, CT Mortgagor is not required to obtain
business interruption insurance.
However, per the Walgreens lease there
is no rent abatement in the event of a
covered casualty to the Building and
the Tenant is not entitled to
terminate after a casualty until after
the 25th year. Additionally, a
non-recourse carveout was added for
any losses as a result of rent
abatement.
--------------------------------------------------------------------------------
Walgreens - Casper, WY Mortgagor is not required to obtain
Walgreens - Apple Valley, CA business interruption insurance.
Walgreens - Miami, OK However, per the Walgreens lease there
Walgreens - Cable Road is no rent abatement and the Tenant is
Walgreens - Lubbock, TX not entitled to terminate after a
Walgreens - Long Beach casualty until after the 25th lease
year. Additionally, a nonrecourse
carveout was added for losses as a
result of rent abatement.
--------------------------------------------------------------------------------
The Mill MHC The property insurance coverage that
is carried has a 100% co-insurance
provision.
--------------------------------------------------------------------------------
Xxxxxxx Village II Apartments Mortgagor's insurance agent does not
Xxxxxxx Village I Apartments issue additional insured forms, but a
request has been made that the holder
of the Mortgage Loan be added as an
additional insured and as mortgagee
loss payee.
--------------------------------------------------------------------------------
Exceptions to Representation (xvii)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
FedEx - Midway There is a B Note held by CapLease,
LP, a Delaware limited partnership in
the amount of $2,736,615.33. The B
Note is secured by the same Mortgage
as the Mortgage Loan and is subject to
an intercreditor agreement.
--------------------------------------------------------------------------------
Eastgate Mall There is a B-1 Note in the amount of
$3,550,000.00 and a B-2 Note in the
amount of $7,750,000.00. Both Notes
are secured by the same Mortgage as
the Mortgage Loan and are subject to
an intercreditor agreement. LaSalle
is the initial holder of the B-1 Note,
but LaSalle intends on selling such
Note, and Mortgage Holdings/Eastgate,
LLC is the holder of the B-2 Note.
The B-2 Note may be defeased
separately from the other 2 Notes. In
addition, Mortgagor may incur
unsecured intercompany indebtedness in
the maximum aggregate amount of
$2,800,000.00, which intercompany
indebtedness must be subordinate to
the Mortgage Loan, provided that such
amount is used solely for the
operation of the Mortgaged Property
and Mortgagor delivers a new
non-consolidation opinion with respect
to the future unsecured lender and
Mortgagor.
--------------------------------------------------------------------------------
Exceptions to Representation (xxiii)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
Campus View Apts. Equity owners in Mortgagor may pledge
up to 49% (in the aggregate) of their
membership interests in Mortgagor to
secure mezzanine financing without
Mortgage Loan holder's consent
provided that control of Mortgagor
does not change. If more than 49% or
a change in control occurs, such
mezzanine financing and pledge is
subject to the fulfillment of certain
conditions set forth in the Mortgage
Loan documents, which conditions
include, among other items, the
execution of an intercreditor
agreement, satisfaction of debt
service coverage ratio and loan to
value tests, and that such debt will
not result in a lien against the
Mortgaged Property.
--------------------------------------------------------------------------------
Sanctuary of Woodshire Future mezzanine financing, secured by
pledges of membership interests in
Mortgagor, is permitted subject to the
satisfaction of certain terms set
forth in the Mortgage Loan documents,
which terms include, among other
terms, the execution of an
intercreditor agreement, satisfaction
of debt service coverage ratio and
loan to value tests, and that such
debt will not result in a lien against
the Mortgaged Property.
--------------------------------------------------------------------------------
Sunshine Key Mortgagor has the right, subject to
the Mortgage Loan Holder's consent,
not to be unreasonably withheld, to
transfer the gasoline station located
on the Mortgaged Property and the
utility facility servicing the
Mortgaged Property to an affiliate
entity(ies) provided that, among other
conditions, such entity becomes
jointly and severally liable with
Mortgagor for the Mortgage Loan.
--------------------------------------------------------------------------------
Exceptions to Representation (xxiii) (cont'd)
--------------------------------------------------------------------------------
Sunburst North Ft. Xxxxx Mortgagor has the right, subject to
Silver Dollar the Mortgage Loan Holder's consent,
Pacific Dunes not to be unreasonably withheld, to
Crystal River transfer the utility facilities
Sunburst Florida Keys servicing the Mortgaged Property to an
affiliate provided that, among other
conditions, such entity becomes
jointly and severally liable with
Mortgagor for the Mortgage Loan and
that Mortgagor shall be able to use
the utility facilities transferred to
such affiliate.
--------------------------------------------------------------------------------
Sunshine Key Certain specified transfers within
Sunburst North Ft. Xxxxx Mortgagor relating to such entity
Silver Dollar being a publicly traded company and/or
Pacific Dunes transfers to an affiliate thereof are
Crystal River permitted.
Sunburst Florida Keys
--------------------------------------------------------------------------------
Xxxxx Xxxx MHR & RV One of the tenant in common borrower's
ownership interest in the Mortgaged
Property (and/or the ownership
interests within such tenant in common
borrower) may be transferred to the
other tenant in common borrower or an
affiliate thereof. In addition,
certain specified transfers within one
of the tenant in common borrowers
relating to such entity being a
publicly traded company and/or
transfers to an affiliate thereof are
permitted.
--------------------------------------------------------------------------------
Exceptions to Representation (xxviii)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
Hillcrest Apartment Community A letter from the municipality stated
there is no zoning code or
classification since the Mortgaged
Property was constructed prior to the
adoption of the building code.
Mortgagor and the principal executed a
guaranty for any loss related to the
enforcement of any municipal code.
--------------------------------------------------------------------------------
Exceptions to Representation (xxviii) (cont'd)
--------------------------------------------------------------------------------
City Centre Place Property is non-conforming with
respect to shortage of 5 handicap
parking spaces, but (a) a non-recourse
carveout was added to indemnify the
holder of the Mortgage Loan from any
losses relating thereto, (b) law and
ordinance insurance was obtained and
(c) a 3.1 zoning endorsement with
parking was obtained. The parking is
pursuant to a lease with the City of
Las Vegas and Mortgagor.
--------------------------------------------------------------------------------
Shores at Lake Point No zoning letter or zoning title
endorsement was received, but a
certificate of occupancy exists and
Mortgagor was required to obtain law
and ordinance insurance.
--------------------------------------------------------------------------------
The Mill MHC Property is zoned agricultural, not
residential; thus re-building rights
may be limited if permanent
improvements are destroyed. However,
since the Mortgaged Property is a
manufactured housing community the
primary permanent improvements are
home pads, which would be very
difficult to destroy. Nonetheless,
law and ordinance coverage was
obtained.
--------------------------------------------------------------------------------
Exceptions to Representation (xxxii)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
City Centre Place There is a pending SEC investigation
against an official of Mortgagor and
the principal (which is the sole
manager of Mortgagor and a vice
president of each tenant in
common/borrower), but which does not
specifically address the Mortgaged
Property. A non-recourse carveout
provision was added to indemnify the
holder of the Mortgage Loan from any
losses resulting from such
investigation. There are also
additional pending lawsuits against
the principal, but they do not relate
to the Mortgaged Property and are not
deemed to materially and adversely
affect Mortgagor's ability to perform.
--------------------------------------------------------------------------------
Exceptions to Representation (xxxii) (cont'd)
--------------------------------------------------------------------------------
Walgreens - Rocky Mount, NC Mortgagor was involved as the
Walgreens - Greenville (Xxxxx) defendant in a breach of contract
claim. Mortgagor paid the claim
($250,000.00), but appealed the award
for abuse of process and won. The
plaintiff asked for a review of the
case, and such review is pending.
--------------------------------------------------------------------------------
Sunburst North Ft. Xxxxx There was a consent order entered into
between the State of Florida
Department of Environmental Protection
and Mortgagor relating to certain
environmental remediation that needs
to be done. Mortgagor has deposited
$325,015.63 with Seller to assure that
such remediation is completed (also
relates representation (xix)).
--------------------------------------------------------------------------------
Exceptions to Representation (xl)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
All LaSalle Mortgage Loans Generally, the Mortgage Loan documents
do not have a non-recourse carve-out
for "other intentional material
misrepresentation," but they do have a
non-recourse carve-out for "material
misrepresentation".
--------------------------------------------------------------------------------
Pleasant Hill Square Mortgagor is not liable for
West River Crossing "misapplication or misappropriation",
but instead is liable for
"misapplication or conversion" of
insurance proceeds, condemnation
awards or rents after an event of
default.
--------------------------------------------------------------------------------
Town Hall Terrace Mortgagor is only liable for
Sunshine Key misapplication or misappropriation of
Sunburst North Ft Xxxxx rents, proceeds or other funds
Silver Dollar received after an "Event of Default"
Pacific Dunes under the Mortgage Loan documents.
Crystal River
Sunburst Florida Keys
--------------------------------------------------------------------------------
Xxxxx Xxxx MHR & RV Mortgagor obtained environmental
insurance in lieu of signing the
Hazardous Indemnification Agreement.
The policy limits are $3.7 million.
--------------------------------------------------------------------------------
Eastgate Mall The nonrecourse carve out regarding
rents, insurance and condemnation
award is only for "intentional
misapplication or conversion" and not
for "misapplication or
misappropriation."
--------------------------------------------------------------------------------
Exceptions to Representation (xli)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
Lakes IV Apartments The Mortgaged Property was recently
subdivided, and the tax parcel
identification number for the
Mortgaged Property contains other
property not part of the subject
premises. Mortgagor is required to
provide a separate tax parcel number
and separate tax parcel endorsement
prior to January 5, 2005.
--------------------------------------------------------------------------------
Weinecke Court A small portion of the adjoining land
is included in one of the property tax
identification numbers. The title
company has nonetheless issued a
separate tax parcel endorsement and
Mortgagor has commenced the process of
rectifying this matter. Mortgagor has
a surveyor preparing a new plat for
subdivision. Upon completion of the
survey, Mortgagor will prepare a
petition to subdivide the tax
identification number.
--------------------------------------------------------------------------------
FedEx Midway The Mortgaged Property has been
legally subdivided, however there is
not a separate tax lot for the
Mortgaged Property. Mortgagor and
principal have agreed to indemnify the
holder of the Mortgage Loan for any
losses that the Mortgage Loan holder
may incur if Mortgagor fails to obtain
a separate tax parcel number for the
Mortgaged Property. Tenant is
obligated to pay the real estate taxes
for the Mortgaged Property.
--------------------------------------------------------------------------------
Xxxxxxx Village I Apartments A number of corrective deeds were
Xxxxxxx Village II Apartments required to correct property
boundaries between the Mortgaged
Property and other properties
controlled by affiliates of the
Mortgagor's principal.
Notwithstanding that the legal
description was modified immediately
prior to closing, a separate tax
parcel endorsement was issued and the
real estate tax reserve was increased
to anticipate possible adjustment to
the real estate taxes. Mortgagor was
required to obtain on a post-closing
basis confirmation of the tax
identification numbers and associated
real estate taxes within 120 days of
closing of the Mortgage Loan.
--------------------------------------------------------------------------------
Exceptions to Representation (xlii)
--------------------------------------------------------------------------------
Loans Exceptions
--------------------------------------------------------------------------------
Sunshine Key A portion of Mortgagor's real estate
is a leasehold interest (the ground
lease is with the State of Florida and
is for a fishing pier). The ground
lease is recorded, but other than that
it does not comply with the rest of
the reps under section (xliii);
however, such portion of land is not
an income producing portion of the
Mortgaged Property and is not
essential to the operation of the
Mortgaged Property.
--------------------------------------------------------------------------------
Eastgate Mall The expiration of the ground lease
term is January 31, 2022 which is 12
years after the maturity date of the
Mortgage Loan (12/1/09). In addition,
the ground lease does not specifically
permit the holder of the Mortgage Loan
to control the receipt and
distribution of insurance proceeds and
condemnation awards.
--------------------------------------------------------------------------------
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
The Mortgage Loan Seller represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date, except as set forth on Schedule V hereto:
(i) Mortgage Loan Schedule. The information pertaining to each
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct
in all material respects as of the Cut-off Date.
(ii) Legal Compliance. As of the date of its origination, such
Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of federal, state or local law relating to the
origination of such Mortgage Loan.
(iii) Good Title; Conveyance. Immediately prior to the sale,
transfer and assignment to the Company, the Mortgage Loan Seller had good
title to, and was the sole owner of, each Mortgage Loan, and the Mortgage
Loan 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 (other than the rights to servicing and
related compensation as reflected in the Agreement to Appointment of
Servicer). The Mortgage Loan Seller has validly and effectively conveyed
to the Company all legal and beneficial interest in and to such Mortgage
Loan.
(iv) Future Advances. The proceeds of such Mortgage Loan have been
fully disbursed and there is no requirement for future advances
thereunder; with respect to any mortgagee requirements for construction or
maintenance of on or off site improvements for which an escrow has been
established, any disbursement of such escrowed funds have satisfied the
requirements of the related Mortgage Loan documents.
(v) Legal, Valid and Binding Obligations. Each Mortgage Note and the
related Mortgage, Assignment of Leases (if any) and other agreement
executed in connection with such Mortgage Loan are legal, valid and
binding obligations of the related mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency legislation or market
value limit deficiency legislation), enforceable in accordance with their
terms, except (i) that certain provisions contained in such Mortgage Loan
documents are or may be unenforceable in whole or in part under applicable
state or federal laws, but neither the application of any such laws to any
such provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(vi) Assignment of Leases and Rents. There exists as part of the
related Mortgage File an Assignment of Leases either as a separate
document or as part of the Mortgage. Each related Assignment of Leases
creates a valid, collateral or first priority assignment of, or a valid
perfected first priority security interest in, the related Mortgagor's
right to receive payments due under the leases or other agreements
pursuant to which any Person is entitled to occupy, use or possess any
portion of the Mortgaged Property, subject to any license granted to the
related Mortgagor to exercise certain rights and to perform certain
obligations of the lessor under such leases and subject to the limitations
described in Paragraph (v).
(vii) Offsets or Defenses. Subject to the limitations described in
Paragraph (v), as of the Mortgage Loan origination date there was and as
of the Cut-off Date there is no valid offset, defense, counterclaim or
right to rescission with respect to any of the related Mortgage Note,
Mortgage(s) or other agreements executed in connection therewith.
(viii) Assignment of Mortgage and Assignment of Assignment of
Leases. Subject to the limitations described in Paragraph (v), each
related assignment of Mortgage and assignment of Assignment of Leases from
the Mortgage Loan Seller to the Trustee constitutes the legal, valid and
binding assignment from the Mortgage Loan Seller. Each related Mortgage,
Mortgage Note and Assignment of Leases is freely assignable upon notice to
the Mortgagor and such notice has been provided.
(ix) Mortgage Lien; Title Exceptions. Each related Mortgage is a
legal, valid and enforceable first lien on the related Mortgaged Property
or Ground Lease, as applicable, including all buildings and improvements
thereon, subject to the exceptions set forth in Paragraph (v) and the
following title exceptions (each such title exception, a "Title
Exception", and collectively, the "Title Exceptions"): (a) the lien of
current real property taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record,
(c) the exceptions (general and specific) and exclusions set forth in the
Title Insurance Policy (defined in (xiii) below), (d) other matters to
which like properties are commonly subject, (e) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar proceeding
(provided that such tenants are performing under such leases) and (f) if
such Mortgage Loan is cross-collateralized with any other Mortgage Loan,
the lien of the Mortgage for such other Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely interferes with
(1) the current use or operation of the Mortgaged Property, (2) the
security intended to be provided by such Mortgage, (3) the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become
due, or (4) the value of the Mortgaged Property. Except with respect to
cross-collateralized and cross-defaulted Mortgage Loans, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
(x) UCC Financing Statements. UCC Financing Statements have been
filed and/or recorded (or, if not filed and/or recorded, have been
submitted in proper form for filing and recording) in the appropriate
public filing and recording offices necessary to perfect a valid security
interest in all items of personal property described therein owned by a
Mortgagor and located on each such Mortgaged Property (other than any
personal property subject to a purchase money security interest or a sale
and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing and subject to the limitations
described in Paragraph (v), the Mortgages, security agreements, chattel
Mortgages or equivalent documents related to and delivered in connection
with the related Mortgage Loans establish and create a valid and
enforceable lien and security interest on the personal property described
above. In the case of a Mortgaged Property operated as a hotel, (a) such
personal property includes all personal property that a prudent
institutional lender making a similar mortgage loan on a like property
would deem reasonably necessary to operate the related Mortgaged Property
as it is currently being operated, (b) the related perfected security
interest is prior to any other security interest that can be perfected by
such UCC filing, except for permitted purchase money security interests
and leases; provided that any such lease has been pledged or assigned to
the lender and its assigns, and (c) the related loan documents contain
such provisions as are necessary and UCC Financing Statements have been
filed or submitted for filing as necessary, in each case, to perfect a
valid first priority security interest in the related revenues with
respect to such Mortgaged Property. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or control
of such items or actions other than the filing of UCC Financing Statements
are required in order to effect such perfection.
(xi) Taxes and Assessments. All real estate taxes and governmental
assessments, fees, environmental charges or water or sewer bills that
prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property have been paid as of the Cut-off Date, or if in
dispute, an escrow of funds in an amount sufficient to cover such payments
has been established. Such taxes and assessments shall not be considered
delinquent or unpaid until the date on which interest or penalties may
first be payable thereon.
(xii) Property Condition; Condemnation Proceedings. To the Mortgage
Loan Seller's knowledge, after conducting due diligence consistent with
the practice of institutional lenders generally for properties of the same
type as the related Mortgaged Property, each related Mortgaged Property as
of origination, and to Mortgage Loan Seller's actual knowledge as of the
Cut-Off Date, was free and clear of any material damage (other than
deferred maintenance for which escrows were established at origination)
that would affect materially and adversely the value, use or operation of
such Mortgaged Property as security for the Mortgage Loan; and to the
Mortgage Loan Seller's knowledge as of the cut-off date, there was no
proceeding pending for the total or partial condemnation of such Mortgaged
Property.
(xiii) Title Insurance. The Mortgage Loan Seller has received an
ALTA lender's title insurance policy or a comparable form of lender's
title insurance policy (or a "proforma" title policy or a commitment
"marked up" at the closing of the related Mortgage Loan or escrow
instructions binding on the title insurer irrevocably obligating the title
insurer to issue such title insurance policy) as adopted in the applicable
jurisdiction (the "Title Insurance Policy"), insuring the Seller, its
successors and assigns, subject only to the Title Exceptions, that the
related Mortgage is a valid first lien in the original principal amount of
the related Mortgage Loan on the Mortgagor's fee simple interest (or, if
applicable, leasehold interest) in the Mortgaged Property. No claims have
been made under such Title Insurance Policy. Such Title Insurance Policy
is in full force and effect and all premiums thereon have been paid. The
Mortgage Loan Seller has not done, by act or omission, anything that would
impair the coverage under such Title Insurance Policy. The insurer issuing
such policy is either (x) a nationally-recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required. Such Title Insurance
Policy contains no material exclusions for, or alternatively, it insures
(unless such coverage is not available in the jurisdiction in which the
Mortgaged Property is located) (a) access to public roads or (b) against
any loss due to encroachments of any material portion of the improvements
thereon.
(xiv) Insurance. As of the Mortgage Loan origination date, the
related Mortgaged Property was insured by all insurance coverage required
under the related Mortgage or loan agreement, which insurance covered such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, including (a) a fire and extended
perils insurance policy in an amount (subject to a customary deductible)
at least equal to the lesser of (i) replacement cost of improvements
located on such Mortgaged Property, or (ii) the initial principal balance
of the Mortgage Loan, and in any event, the amount necessary to avoid the
operation of any co-insurance provisions, (b) business interruption or
rental loss insurance in an amount at least equal to 12 months of
operations of the related Mortgaged Property, and (c) comprehensive
general liability insurance in such amounts as are generally required by
reasonably prudent lenders for similar properties. As of the Cut-off Date,
to the actual knowledge of the Mortgage Loan Seller, (x) such insurance
was in full force and effect, and (y) no notice of termination or
cancellation with respect to any such insurance policy has been received
by the Mortgage Loan Seller. Except for certain amounts not greater than
amounts which would be considered prudent by an institutional commercial
mortgage lender with respect to a similar mortgage loan and which are set
forth in the related Mortgage, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or restoration of
the related Mortgaged Property, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan, subject in either case to state
law and requirements with respect to leases at the related Mortgaged
Property and to other exceptions customarily provided for by prudent
institutional lenders for similar loans. The insurer with respect to each
policy is qualified to write insurance in the relevant jurisdiction to the
extent required. The insurance policies contain a standard mortgagee
clause naming mortgagee, its successors and assigns as loss payees in the
case of property insurance policies and additional insureds in the case of
liability insurance policies and provide that they are not terminable and
may not be reduced below replacement cost without 30 days prior written
notice to the mortgagee (or, with respect to non-payment, 10 days prior
written notice to the mortgagee) or such lesser period as prescribed by
applicable law. Each Mortgage or loan agreement requires that the
Mortgagor maintain insurance as described above.
(xv) Material Defaults. (A) Other than payments due but not yet 30
days or more delinquent, to the Seller's actual knowledge, based on due
diligence customarily performed in connection with the servicing of
comparable mortgage loans, (i) there is no material default, breach,
violation or event of acceleration existing under the related Mortgage
Note or Mortgage, (ii) since the date of origination of such Mortgage
Loan, there has been no declaration by the Mortgage Loan Seller of an
event of acceleration under the related Mortgage or Mortgage Note, and
(iii) Mortgage Loan Seller has not received notice of any 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
constitute a material default, breach, violation or event of acceleration
under any of such documents; (B) the Mortgage Loan Seller has not waived
any material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage; and (C) under the terms of each Mortgage Loan,
no Person other than the holder of the Mortgage Note may declare an event
of default or accelerate the related indebtedness under such Mortgage
Loan, Mortgage Note or Mortgage, 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 representation and
warranty made by the Seller elsewhere in this Exhibit A, or in any of the
exceptions to the representations and warranties in Schedule V hereto.
(xvi) Payment Record. As of the Cut-Off Date, each Mortgage Loan is
not, and in the prior 12 months (or since the date of origination if such
Mortgage Loan has been originated within the past 12 months) has not been,
30 days or more past due in respect of any Scheduled Payment.
(xvii) Additional Collateral. The related Mortgage does not provide
for or permit, without the prior written consent of the holder of the
Mortgage Note, the related Mortgaged Property to secure any other
promissory note or obligation (other than any other Mortgage Loan or any
Companion Loan) and the Mortgage Note is not secured by any collateral
that is not included in the Trust Fund.
(xviii) Qualified Mortgage. 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 Regulations 1.860G-2(f)(2)
that treats a defective obligation as a qualified mortgage, or any
substantially similar successor provision). Each Mortgage Loan is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (2) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of the Mortgage Loan (a) as of the Testing Date, or (b)
as of the Closing Date. For purposes of the previous sentence, (1) the
fair market value of the referenced interest in real property shall first
be reduced by (a) the amount of any lien on such interest in real property
that is senior to the Mortgage Loan, and (b) a proportionate amount of any
lien on such interest in real property that is on a parity with the
Mortgage Loan, and (2) the "Testing Date" shall be the date on which the
referenced Mortgage Loan was originated unless (a) such Mortgage Loan was
modified after the date of its origination in a manner that would cause
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(b), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected
to a "significant modification" after the date of its origination and at a
time when such Mortgage Loan was not in default or when default with
respect to such Mortgage Loan was not reasonably foreseeable, the Testing
Date shall be the date upon which the latest such "significant
modification" occurred.
(xix) Environmental. One or more Phase I environmental site
assessments or updates thereof (each a "Phase I") meeting ASTM
requirements were performed by an environmental consulting firm
experienced in environmental matters and properly licensed, if applicable,
and independent of the Mortgage Loan Seller and the Mortgage Loan Seller's
affiliates with respect to each related Mortgaged Property within the 18
months prior to the Closing Date and the Mortgage Loan Seller, having made
no independent inquiry other than to review the Phase I prepared in
connection with the assessment(s) referenced herein, has no knowledge and
has received no notice of any material and adverse environmental condition
or circumstance affecting such Mortgaged Property that was not disclosed
in such report(s). With respect to any material and adverse environmental
matters disclosed in such Phase I, then either (i) the same have been
remediated in all material respects, (ii) sufficient funds have been
escrowed for purposes of effecting such remediation, (iii) the related
mortgagor or other responsible party is currently taking or required to
take such actions, if any, with respect to such matters as have been
recommended by the Phase I or required by the applicable governmental
authority, (iv) an operations and maintenance plan has been or will be
implemented, (v) environmental insurance has been obtained with respect to
such matters, subject to customary limitations, (vi) a "no further action"
letter or other evidence reasonably acceptable to a prudent commercial
mortgage lender has been obtained stating that the applicable governmental
authority had no current intention of taking any action, and are not
requiring the taking of any action, in respect of such condition or
circumstance, or (vii) such conditions or circumstances were investigated
further and, based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or
remediation. Each Mortgage Loan requires the related mortgagor to comply,
and cause the related Mortgaged Property to be in compliance, with all
applicable federal, state and local environmental laws and regulations.
(xx) Customary Mortgage Provisions. Each related Mortgage contains
customary and enforceable provisions such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the limitations described in Paragraph (v).
(xxi) Bankruptcy. As of origination, and to the actual knowledge of
the Mortgage Loan Seller as of the Cut-off Date, no Mortgagor is a debtor
in any state or federal bankruptcy or insolvency proceeding.
(xxii) Whole Loan. Each Mortgage Loan, when taken together with its
related Companion Loan, if applicable, is a whole loan, contains no equity
participation by the lender or shared appreciation feature and does not
provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or
provide for negative amortization. The Mortgage Loan Seller holds no
equity interest in any Mortgagor.
(xxiii) Transfers and Subordinate Debt. Subject to certain
exceptions which are customarily acceptable to commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property, each related Mortgage or
loan agreement contains provisions for the acceleration of the payment of
the unpaid principal balance of such Mortgage Loan if, without complying
with the requirements of the Mortgage or loan agreement, the related
Mortgaged Property, or any controlling interest in the related Mortgagor,
is directly transferred or sold (other than by reason of family and estate
planning transfers and transfers of less than a controlling interest in a
mortgagor, or by reason of a substitution or release of collateral within
the parameters of Paragraph (xxvi) below), or encumbered by a subordinate
lien or security interest against the related Mortgaged Property, other
than any existing permitted additional debt.
(xxiv) Waivers and Modifications. Except as set forth in the
Mortgage File, the terms of the related Mortgage Note and Mortgage(s) have
not been waived, modified, altered, satisfied, impaired, canceled,
subordinated or rescinded in any manner which materially interferes with
the security intended to be provided by such Mortgage.
(xxv) Inspection. Each related Mortgaged Property was inspected by
or on behalf of the related originator or an affiliate within the 18
months prior to the Closing Date.
(xxvi) Releases. Except as set forth below, since origination, no
material portion of the related Mortgaged Property has been released from
the lien of the related Mortgage, in any manner which materially and
adversely affects the value, use or operation of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage. The terms of the related Mortgage do not provide for release of
any material portion of the Mortgaged Property from the lien of the
Mortgage except (a) in consideration of payment therefor equal to not less
than the related allocated loan amount of such Mortgaged Property, (b)
upon payment in full of such Mortgage Loan, (c) for Mortgage Loans that
permit defeasance, by means of substituting the Mortgaged Property (or, in
the case of a Mortgage Loan secured by multiple Mortgaged Properties, one
or more of such Mortgaged Properties) for "government securities" (within
the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as
amended) sufficient to pay the Mortgage Loans in accordance with their
terms, (d) for Mortgage Loans which permit the related Mortgagor to
substitute a replacement property, (e) for releases not considered
material for purposes of underwriting the Mortgage Loan, or (f) for
releases that are conditional upon the satisfaction of certain
underwriting and legal requirements and require payment of a release price
that represents adequate consideration for such Mortgaged Property.
(xxvii) Defeasance. Each Mortgage Loan that permits defeasance
either (i) requires the prior written consent of, and compliance with, the
conditions set by, the holder of the Mortgage Loan, (ii) requires
confirmation from the rating agencies rating the certificates of any
securitization transaction in which such Mortgage Loan is included that
such defeasance will not cause the downgrade, withdrawal or qualification
of the then current ratings of such certificates, or (iii) requires that
(A) defeasance must occur in accordance with the requirements of, and
within the time permitted by, applicable REMIC rules and regulations, (B)
the replacement collateral consists of "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 such
Mortgage Loan when due, (C) independent certified public accountants
certify that such government securities are sufficient to make such
payments, and (D) counsel provide an opinion stating that upon exchange of
the collateral, the Trustee will have a first priority perfected security
interest in the government securities. Notwithstanding the foregoing, some
of the Mortgage Loan documents may not affirmatively contain all such
requirements, but such Mortgage Loan documents require that the borrower
comply with the REMIC Provisions and/or deliver a REMIC Opinion of
Counsel. A Mortgage Loan that permits defeasance provides that the related
borrower is responsible for all reasonable costs incurred in connection
with the defeasance of the Mortgage Loan.
(xxviii) Zoning. To the Mortgage Loan Seller's knowledge, as of the
date of origination of such Mortgage Loan, based on due diligence
considered reasonable by prudent commercial conduit mortgage lenders,
taking into account the location of the Mortgaged Property, and, to the
Mortgage Loan Seller's actual knowledge, as of the Cut-off Date, there are
no violations of any applicable zoning ordinances, building codes and land
laws applicable to the Mortgaged Property or the use and occupancy thereof
which (i) are not insured by the related Title Insurance Policy or a law
and ordinance insurance policy, or (ii) would have a material adverse
effect on the value, use, operation or net operating income of the
Mortgaged Property.
(xxix) Encroachments. To the Mortgage Loan Seller's knowledge based
on surveys and/or the Title Insurance Policy, none of the improvements
which were included for the purposes of determining the appraised value of
the related Mortgaged Property at the time of the origination of the
Mortgage Loan lies outside of the boundaries and building restriction
lines of such property (except Mortgaged Properties for which the use or
improvements are legally non-conforming) to an extent which would have a
material adverse affect on the related Mortgagor's value, use and
operation of such Mortgaged Property (unless affirmatively covered by the
Title Insurance Policy) and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material extent (unless
affirmatively covered by the Title Insurance Policy).
(xxx) Single Purpose Entity. Each Mortgagor with respect to a
Mortgage Loan with a principal balance, as of the Cut-off Date, in excess
of 5% of the aggregate principal balance of the Mortgage Loans included in
the Trust Fund is an entity whose organizational documents provide that it
is, and at least so long as the Mortgage Loan is outstanding will continue
to be, a single purpose entity. (For this purpose, "single-purpose entity"
shall mean a person, other than an individual, that (a) does not engage in
any business unrelated to the related Mortgaged Property or its financing,
(b) does not have any significant assets other than those related to its
interest in the Mortgaged Property or its financing, (c) does not have any
indebtedness (other than as permitted by the related Mortgage or another
document contained in the Mortgage Loan File), (d) has its own books and
records separate and apart from any other Person, and (e) holds itself out
as being a legal entity, separate and apart from any other Person.
(xxxi) Advances After Origination. No advance of funds has been made
after origination, directly or indirectly, by the Mortgage Loan Seller to
the Mortgagor and, to the Mortgage Loan Seller's knowledge, no funds have
been received from any person other than the Mortgagor, for or on account
of payments due on the Mortgage Note or the Mortgage.
(xxxii) Litigation Or Other Proceedings. As of the Mortgage Loan
origination date there was and, to the Mortgage Loan Seller's knowledge,
as of the Cut-off Date, there is no pending action, suit or proceeding
against the Mortgagor or the related Mortgaged Property that could
reasonably be expected to materially and adversely affect either such
Mortgagor's performance under the related Mortgage Loan documents or the
holders of the Certificates.
(xxxiii) Usury. The Mortgage Rate (exclusive of any default
interest, late charges or prepayment premiums) of such Mortgage Loan is a
fixed rate, and as of the date of origination, complied with or was exempt
from applicable state or federal laws, regulations and other requirements
pertaining to usury.
(xxxiv) Trustee Under Deed Of Trust. As of the Mortgage Loan
origination date and as of the Cut-Off Date, if the related Mortgage is a
deed of trust, a trustee, duly qualified under applicable law to serve as
such, either has been properly designated and serving under such Mortgage
or may be substituted in accordance with the Mortgage and applicable law,
and no fees or expenses are or will become payable to the trustee under
the deed of trust, except in connection with the sale or release of the
Mortgaged Property following a default in payment of the Mortgage Loan.
(xxxv) Other Collateral; Cross-Collateralization. Except with
respect to any Whole Loan, the related Mortgage Note is not secured by any
collateral that secures a loan that is not in the Trust Fund and each
Mortgage Loan that is cross-collateralized is cross-collateralized only
with other Mortgage Loans sold pursuant to this Agreement.
(xxxvi) Flood Insurance. The improvements located on the Mortgaged
Property are either not located in a federally designated special flood
hazard area, or if so located, then either (i) flood insurance is not
required by the Federal Emergency Management Agency or (ii) the Mortgagor
is required to maintain, and as of origination did maintain, or the
Mortgagee maintains, flood insurance with respect to such improvements.
(xxxvii) Escrow Deposits. All escrow deposits and payments required
pursuant to the Mortgage Loan to be deposited with the Mortgage Loan
Seller or its agent have been so deposited, are in the possession, or
under the control, of the Mortgage Loan Seller or its agent and there are
no deficiencies in connection therewith.
(xxxviii) Licenses and Permits. To the Mortgage Loan Seller's
knowledge, based on due diligence customarily performed in the origination
of comparable mortgage loans by prudent commercial conduit mortgage
lenders, taking into account the location of the Mortgaged Property, (a)
as of the date of origination of the Mortgage Loan, the related Mortgagor,
the related lessee, franchisee or operator was in possession of all
material licenses, permits and authorizations then required for use of the
related Mortgaged Property, and in the case of a Mortgaged Property
operated as a hotel, the franchise agreement, if any, is in full force and
effect, and no default, or event that, with the passage of time or the
giving of notice or both, would constitute a default, had occurred under
such franchise agreement, and, (b) as of the Cut-Off Date, the Mortgage
Loan Seller has no knowledge that the related Mortgagor, the related
lessee, franchisee or operator was not in possession of such licenses,
permits and authorizations.
(xxxix) Servicing and Collection Practices. To the Mortgage Loan
Seller's knowledge, the servicing and collection practices used by the
Mortgage Loan Seller with respect to the Mortgage Loan have been in all
respects legal and have met customary industry standards for the servicing
of commercial mortgage loans for commercial mortgage loan conduit
programs.
(xl) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that the Mortgage Loan is generally non-recourse to
the related Mortgagor, except that the related Mortgagor shall be liable
to the lender for losses incurred due to (i) fraud and/or other
intentional material misrepresentation, (ii) the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default, insurance proceeds
or condemnation awards or (iii) any breach of the environmental covenants
in the related Mortgage Loan documents.
(xli) Separate Tax Lots. Each Mortgaged Property constitutes one or
more separate tax lots (or will constitute separate tax lots when the next
tax maps are issued) or is subject to an endorsement under the related
Title Insurance Policy insuring for losses arising from any claim that the
Mortgaged Property is not one or more separate tax lots.
(xlii) Ground Leases. Each Mortgage Loan, other than the Mortgage
Loans listed on Exhibit C hereto, is secured by the fee interest in the
related Mortgaged Property. With respect to the Mortgage Loans listed on
Exhibit C, the Mortgage Loans are secured by the interest of the related
Mortgagor as a lessee under a ground lease of a Mortgaged Property (a
"Ground Lease") (the term Ground Lease shall mean such ground lease, all
written amendments and modifications, and any related estoppels or
agreements from the ground lessor and, in the event the borrower's
interest is a ground subleasehold, shall also include not only such ground
sublease but also the related ground lease), but not by the related fee
interest in such Mortgaged Property and:
(A) Such Ground Lease or a memorandum thereof has been or will be
duly recorded or submitted for recording as of the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to
be encumbered by the related Mortgage or, if consent of the lessor
is required, such consent has been obtained prior to the Closing
Date;
(B) Such Ground Lease (i) is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related fee interest in such Mortgaged
Property and the Title Exceptions, or (ii) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject;
(C) Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease
is assignable to the mortgagee and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date);
(D) Such Ground Lease is in full force and effect, and as of the
Closing Date, the Mortgage Loan Seller has not received notice (nor
is the Mortgage Loan Seller otherwise aware) that any default has
occurred under such Ground Lease;
(E) Such Ground Lease requires that if the mortgagee under such
Mortgage Loan has provided the lessor with notice of its lien, then
such lessor must give notice of any default by the lessee to the
mortgagee, and such Ground Lease, or an estoppel letter received by
the mortgagee from the lessor, further provides that no notice of
termination given under such Ground Lease is effective against such
mortgagee unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(F) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including such time as is necessary to obtain
possession by foreclosure or otherwise) to cure any default under
such Ground Lease that is curable after the receipt of written
notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(G) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth
therein all of which can be exercised by the mortgagee if the
mortgagee acquires the lessee's rights under the Ground Lease) that
extends not less than 20 years beyond the stated maturity date of
the related Mortgage Loan (or, with respect to any Mortgage Loan
with an Anticipated Repayment Date, 10 years);
(H) Such Ground Lease requires the lessor to enter into a new lease
with the mortgagee under such Mortgage Loan upon termination of such
Ground Lease for any reason, including rejection of such Ground
Lease in a bankruptcy proceeding;
(I) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
that is awarded with respect to the leasehold interest will be
applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee under such
Mortgage Loan or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment or defeasance of the outstanding principal balance of
such Mortgage Loan together with any accrued interest thereon
(except 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);
(J) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender;
(K) Such Ground Lease may not be amended or modified without the
prior consent of the mortgagee under the Mortgage Loan and any such
action without such consent is not binding on such mortgagee, its
successors or assigns, except in connection with the termination or
cancellation of the Ground Lease following an event of default under
the Ground Lease where notice had been provided to the mortgagee,
such default is curable by the mortgagee, but the default was not
cured beyond the applicable cure period.
(xliii) Originator Authorization. To the extent required under
applicable law and necessary for the enforcement of the Mortgage Loan, as
of the date of origination, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located.
(xliv) Capital Contributions. Neither the Mortgage Loan Seller nor
any affiliate thereof has any obligation to make any capital contributions
to the Mortgagor under the Mortgage Loan.
(xlv) No Mechanics' Liens. The related 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 the related Title Insurance Policy.
(xlvi) Appointment of Receiver. If the Mortgaged Property is subject
to any leases, the borrower is the owner and holder of the landlord's
interest under such leases and the related Mortgage and assignment of
rents provides for the appointment of a receiver for rents or allows the
mortgagee to enter into possession to collect rent or provides for rents
to be paid directly to the mortgagee in the event of default.
(xlvii) Credit Tenant Leases.
(A) The lease payments due under the related Credit Lease, together
with any escrow payments held by the Mortgage Loan Seller or its designee,
are equal to or greater than the payments due with respect to the related
Mortgage Loan.
(B) The Mortgagor does not have any material monetary obligations
under the related Credit Lease, and every material monetary obligation
associated with managing, owning, developing and operating the leased
property, including, but not limited to, the costs associated with
utilities, taxes, insurance, maintenance and repairs is an obligation of
the related Tenant.
(C) The Mortgagor does not have any nonmonetary obligations under
the related Credit Lease, except for the delivery of possession of the
leased property.
(D) Except as may be limited by the limitations described in
paragraph (v), the related Tenant cannot terminate such Credit Lease for
any reason prior to the payment in full of: (a) the principal balance of
the related Mortgage Loan; (b) all accrued and unpaid interest on such
Mortgage Loan; and (c) any other sums due and payable under such Mortgage
Loan, as of the termination date, which date is a rent payment date,
except for a material default by the related Mortgagor under the Credit
Lease or due to a casualty or condemnation event, in which case, a Lease
Enhancement Policy insures against such risk.
(E) In the event the related Tenant assigns or sublets the related
leased property, such Tenant (and if applicable, the related guarantor)
remains obligated under the related Credit Lease.
(F) Each property related to a Credit Lease Loan is one or more
separate tax lots, except properties concerning which adequate funds have
been escrowed to cover taxes due on the entire tax lot or lots.
(G) The related Tenant has agreed to indemnify the Mortgagor from
any claims of any nature (a) to which the Mortgagor is subject because of
such Mortgagor's estate in the leased property (except to the extent
caused by the act or omission of the Mortgagor or its agents or
employees), or (b) arising from (i) injury to or death of any person or
damage to or loss of property on the leased property or connected with the
use, condition or occupancy of the leased property, (ii) Tenant's
violation of the related Credit Lease, or (iii) any act or omission of the
Tenant.
(H) The related Tenant has agreed to indemnify the Mortgagor from
any claims of any nature arising as a result of any hazardous material
affecting the leased property and due to such Tenant's use of the leased
property.
(I) In connection with Credit Lease Loans with respect to which a
Guaranty exists, the related guarantor guarantees the payment due under
the related Credit Lease and such Guaranty, on its face, contains no
conditions to such payment.
(J) Except for the Credit Lease Loans which have residual value
insurance, each Credit Lease Loan fully amortizes over the term of the
loan, and there is no "balloon" payment due under such Credit Lease Loan
at maturity.
(K) No Tenant under a Credit Lease Loan may exercise any offset or
set-off right.
(L) Each Tenant under each Credit Lease Loan is required to make all
rental payments due under the applicable Credit Lease directly to a
lock-box being maintained by or on behalf of the mortgagee.
(M) No material modification or amendment of any Credit Lease shall
be binding upon the related mortgagee without such mortgagee's prior
written consent to such material modification or amendment, which consent
may not be unreasonably withheld.
(N) Each property related to a Credit Lease Loan has a permanent
certificate of occupancy, and the related Tenant thereunder has commenced
the payment of rent due under the respective Credit Tenant Lease in
accordance with its terms.
(O) Each Tenant has delivered a subordination, non-disturbance and
attornment agreement pursuant to which the respective Tenant has agreed in
the event the related mortgagee succeeds to the interest of the Mortgagor
under the Credit Lease by reason of foreclosure or acceptance of a deed in
lieu of foreclosure, the Tenant will attorn to and recognize the mortgagee
as its landlord under the Credit Lease for the remainder of the term of
the Credit Lease.
(P) To the Mortgage Loan Seller's knowledge, the property related to
each Credit Lease Loan is not subject to any other lease other than the
related Credit Lease or any ground lease pursuant to which the related
Mortgagor has acquired its interest in the respective property, no Person
has any possessory interest in, or right to occupy, the subject property
except under and pursuant to any such Credit Lease or ground lease and the
related Tenant under each Credit Lease is in occupancy of the demised
premises.
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 LaSalle Bank National
Association ("LaSalle");
2. that LaSalle 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 LaSalle , 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 LaSalle Bank National Association,
under date of ______________ (the "Note");
4. that the Note is now owned and held by LaSalle;
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 LaSalle; and
7. upon assignment of the Note by LaSalle 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 LaSalle to the Trustee) LaSalle
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 LaSalle's failure to deliver said
original Note to the Trustee.
LASALLE BANK NATIONAL ASSOCIATION
By:____________________________________
Name:
Title:
Sworn to before me
this ________ day of [ ], 2004
EXHIBIT C
MORTGAGE LOANS WITH GROUND LEASE
Eastgate Mall
Walgreens - Long Beach
EXHIBIT D
POOLING AND SERVICING AGREEMENT
[see attached]
