Exhibit 4.3
EXECUTION COPY
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of May 18, 2005
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TABLE OF CONTENTS
Page
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Section 1. Transactions on or Prior to the Closing Date...............................1
Section 2. Closing Date Actions.......................................................1
Section 3. Conveyance of Mortgage Loans...............................................2
Section 4. Depositor's Conditions to Closing..........................................8
Section 5. Seller's Conditions to Closing.............................................9
Section 6. Representations and Warranties of Seller..................................10
Section 7. Obligations of Seller.....................................................13
Section 8. Crossed Mortgage Loans....................................................16
Section 9. Rating Agency Fees; Costs and Expenses Associated with a Defeasance.......17
Section 10. Representations and Warranties of Depositor...............................17
Section 11. Survival of Certain Representations, Warranties and Covenants.............18
Section 12. Transaction Expenses......................................................18
Section 13. Recording Costs and Expenses..............................................18
Section 14. Notices...................................................................19
Section 15. Examination of Mortgage Files.............................................19
Section 16. Successors................................................................19
Section 17. Governing Law.............................................................19
Section 18. Severability..............................................................20
Section 19. Further Assurances........................................................20
Section 20. Counterparts..............................................................20
Section 21. Treatment as Security Agreement...........................................20
Section 22. Recordation of Agreement..................................................21
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
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MORTGAGE LOAN PURCHASE AGREEMENT
This
Mortgage Loan Purchase Agreement (this "AGREEMENT"), dated as of
May 18, 2005, is made by and between KEYBANK NATIONAL ASSOCIATION, a national
banking association ("SELLER"), and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation ("DEPOSITOR").
RECITALS
I. Capitalized terms used herein without definition have the meanings
ascribed to them in the Schedule of Transaction Terms attached hereto as
SCHEDULE I, which is incorporated herein by this reference, or, if not defined
therein, in the Pooling and Servicing Agreement specified on such Schedule of
Transaction Terms.
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 of the Mortgage Loans listed in the Mortgage Loan Schedule to Xxxxx
Fargo Bank, N.A. as trustee (the "TRUSTEE") or its designee, against receipt by
Seller of a written receipt, pursuant to an arrangement between Seller and the
Trustee; PROVIDED, HOWEVER, that ITEM (xvi) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File; and PROVIDED, FURTHER, that Seller shall pay (or
cause the related Borrower to pay) any costs of the assignment or amendment of
each letter of credit described under said ITEM (xvi) required in order for the
Trustee to draw on such letter of credit pursuant to the terms of the Pooling
and Servicing Agreement and shall deliver the related assignment or amendment
documents within thirty (30) days after the Closing Date. In addition, prior to
such assignment or amendment of a letter of credit, Seller will take all
necessary steps to enable the applicable Master Servicer to draw on the related
letter of credit on behalf of the Trustee pursuant to the terms of the Pooling
and Servicing Agreement, including, if necessary, drawing on the letter of
credit in its own name pursuant to written instructions to draw from the
applicable Master Servicer and upon receipt, immediately remitting the proceeds
of such draw (or causing such proceeds to be remitted) to the applicable Master
Servicer.
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 Sidley Xxxxxx Xxxxx & Xxxx
LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as
agreed upon between the parties hereto. On the Closing Date, the following
actions shall take place in sequential order on the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall
purchase from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Depositor by Seller. The Mortgage Loan Purchase
Price shall be paid by Depositor to Seller or at its direction by wire
transfer in immediately available funds to an account designated by Seller
on or prior to the Closing Date. The "MORTGAGE LOAN PURCHASE PRICE" shall
be the price mutually agreed upon as such in writing between Depositor and
Seller.
(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, subject to any related servicing
rights of any applicable Master Servicer under, and/or any applicable Primary
Servicer contemplated by, the Pooling and Servicing Agreement, without recourse
except as provided herein, to Depositor, free and clear of any liens, claims or
other encumbrances, all of Seller's right, title and interest in, to and under:
(i) each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii)
all property of Seller described in SECTION 21(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or prepayment premiums received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or prepayment premiums that were due on or
prior to the Cut-off Date. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(i) the 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
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and a true and complete copy of the Note), bearing, or accompanied by, all
prior and intervening endorsements or assignments showing a complete chain
of endorsement or assignment from the Mortgage Loan Originator either in
blank or to Seller, and further endorsed (at the direction of Depositor
given pursuant to this Agreement) by Seller, on its face or by allonge
attached thereto, without recourse, either in blank or to the order of the
Trustee in the following form: "Pay to the order of Xxxxx Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2005-C2, without recourse, representation or warranty, express or
implied";
(ii) 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, certified
copies or copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each
case in the form submitted for recording or, if recorded, with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form (except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage Loan
Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for
the registered Holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C2";
(iv) 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
Seller, in each case in the form submitted for recording or, if recorded,
with evidence of recording thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form (except for any missing recording information and, if
applicable, completion of the name of the assignee), from Seller (or the
Mortgage Loan Originator), either in blank or to "Xxxxx Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2005-C2";
(vi) 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 Seller;
(vii) an original assignment of any related Security
Agreement (if such item is a document separate from the Mortgage), from
Seller (or the Mortgage Loan Originator) either in blank or to "Xxxxx Fargo
Bank, N.A., as trustee for the registered
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Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2005-C2," 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);
(viii) originals or copies of all (A) assumption agreements,
(B) modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence of recording thereon or in the form
submitted for recording, in those instances where the terms or provisions
of the Mortgage, Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof (together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has not yet
been issued, the original or a copy of a binding written commitment (which
may be a PRO FORMA or specimen title insurance policy which has been
accepted or approved in writing by the related title insurance company) or
interim binder that is marked as binding and countersigned by the title
company, insuring the priority of the Mortgage as a first lien on the
related Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all
UCC Financing Statements and continuation statements which show the filing
or recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording
(including the filing number or other similar filing information)
acceptable to the Trustee (including, without limitation, evidence of such
filed or recorded UCC Financing Statement as shown on a written UCC search
report from a reputable search firm, such as Corporation Service Company,
CT Corporation System and the like or printouts of on-line confirmations
from such UCC filing or recording offices or authorized agents thereof),
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, and original UCC Financing Statement assignments, in a
form suitable for filing or recording, sufficient to assign each such UCC
Financing Statement to the Trustee;
(xii) 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;
(xiii) with respect to any debt of a Borrower or mezzanine
borrower permitted under the related Mortgage Loan, an original or copy of
a subordination agreement, standstill agreement or other intercreditor,
co-lender or similar agreement relating to such other debt, if any,
including any mezzanine loan documents or preferred
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equity documents, and a copy of the promissory note relating to such other
debt (if such other debt is also secured by the related Mortgage);
(xiv) with respect to any Cash Collateral Accounts and
Lock-Box Accounts, an original or copy of any related account control
agreement and a copy of the UCC Financing Statements, if any, submitted for
filing with respect to 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 security interest to the Trustee on
behalf of the Certificateholders);
(xv) 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 Account Agreement (if separate from
the related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating to the Mortgage Loans and amendments thereto which entitles the
Trust to draw thereon; PROVIDED that in connection with the delivery of the
Mortgage File to the Trust, such originals shall be delivered to the
applicable Master Servicer and copies thereof shall be delivered to the
Trustee;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement or copies thereof;
(xviii) the original or a copy of the ground lease, ground
lease memorandum and ground lease estoppels, if any, and any amendments,
modifications or extensions thereto, if any, or certified copies thereof;
(xix) the original or copy of any property management
agreement;
(xx) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable
transfer/assignment documents; and
(xxi) a checklist of the documents included in the subject
Mortgage File.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, 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 (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement) and (xii) of the
last sentence of the first paragraph of this SECTION 3, 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, Seller: (i) shall
deliver, or cause to be delivered, to the Trustee or its designee a duplicate
original or true copy of such document or instrument certified by the applicable
public recording or filing office, the applicable title insurance company or
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
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delivered, to the Trustee or its designee 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 after the Closing Date, which
period may be extended up to two times, in each case for an additional period of
45 days (PROVIDED that 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 recording or filing office such original or photocopy). Compliance
with this paragraph will satisfy Seller's delivery requirements under this
SECTION 3 with respect to the subject document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, 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 (ii), (iv), (viii),
(xi) (other than assignments of UCC Financing Statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement) and (xii) of the
last sentence of the first paragraph of this SECTION 3, with evidence of
recording or filing thereon for any other reason, including without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document or instrument shall be deemed to have been included in
the related Mortgage File if a photocopy of such non-delivered document or
instrument (with evidence of recording or filing thereon and certified by the
appropriate recording or filing office to be a true and complete copy of the
original thereof as filed or recorded) is delivered to the Trustee or its
designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that Seller cannot deliver
any UCC Financing Statement assignment with the filing or recording information
of the related UCC Financing Statement with respect to any Mortgage Loan, solely
because such UCC Financing Statement has not been returned by the public filing
or recording office where such UCC Financing Statement has been delivered for
filing or recording, Seller shall so notify the Trustee or its designee and
shall not be in breach of its obligations with respect to such delivery,
PROVIDED that Seller promptly forwards such UCC Financing Statement to the
Trustee or its designee upon its return, together with the related original UCC
Financing Statement assignment in a form appropriate for filing or recording.
Notwithstanding the foregoing, 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 (iii), (v) and
(xi) of the last sentence of the first paragraph of this SECTION 3
(collectively, the "ASSIGNMENTS"), to submit those 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. However, in the event Seller engages a third-party contractor as
contemplated in the immediately preceding sentence, the rights, duties and
obligations of Seller pursuant to this Agreement remain binding on Seller; and,
if Seller does not engage a third party as contemplated by the
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immediately preceding sentence, then 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, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, financial statements, operating
statements and any other information provided by the respective Borrower from
time to time, but excluding any documents and other writings not enumerated in
this parenthetical that have been prepared by Seller or any of its Affiliates
solely for internal credit analysis or other internal uses or any
attorney-client privileged communication) 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.
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.
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 Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer).
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 Note, the related Mortgage and the contents of the
related Mortgage File shall be vested in Depositor and the ownership of all
records and documents with respect to the related Mortgage Loan prepared by or
which come into the possession of Seller as seller of the
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Mortgage Loans hereunder, exclusive in each case of documents prepared by Seller
or any of its Affiliates solely for internal credit analysis or other internal
uses or any attorney-client privileged communication, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
Seller shall, under generally accepted accounting principles ("GAAP"),
report its transfer of the Mortgage Loans to Depositor, as provided herein, as a
sale of the Mortgage Loans to Depositor in exchange for the consideration
specified in SECTION 2 hereof. In connection with the foregoing, Seller shall
cause all of its financial and accounting records to reflect such transfer as a
sale (as opposed to a secured loan). 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 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 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 Seller required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to 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
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of
SECTION 1 of this Agreement, which shall have been delivered to and held by
the Trustee or its designee on behalf of Seller;
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(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its
representations and warranties set forth in SECTION 6(a) (subject to the
exceptions set forth in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, covering various corporate matters and such other matters as
shall be reasonably required by 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 Depositor in order for 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 Depositor
as contemplated herein.
(c) 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) 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
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. Seller shall reasonably cooperate with the Trustee and
the Special Servicer in connection with any additional powers or revisions
thereto that are requested by such parties.
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:
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(i) 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
(ii) 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) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. REPRESENTATIONS AND WARRANTIES OF SELLER.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
national banking association in good standing under the laws of the United
States of America. Seller has conducted and is conducting its business so
as to comply in all material respects with all applicable statutes and
regulations of regulatory bodies or agencies having jurisdiction over it,
except where the failure so to comply would not have a materially adverse
effect on the performance by Seller of this Agreement, and there is no
charge, action, investigation, 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 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
10
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 articles
or certificate of incorporation and bylaws or similar type organizational
documents, as applicable; (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 Depositor to
realize on the Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans
(1) will not cause Seller to become insolvent and (2) is not intended by
Seller to hinder, delay or defraud any of its present or future creditors.
After giving effect to its transfer of the Mortgage Loans, as provided
herein, the value of Seller's assets, either taken at their present fair
saleable value or at fair valuation, will exceed the amount of Seller's
debts and obligations, including contingent and unliquidated debts and
obligations of Seller, and Seller will not be left with unreasonably small
assets or capital with which to engage in and conduct its business. Seller
does not intend to, and does not believe that it will, incur debts or
obligations beyond its ability to pay such debts and obligations as they
mature. No proceedings looking toward liquidation, dissolution or
bankruptcy of 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,
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order, registration, filing or notice has been obtained, made or given (as
applicable), except for the filing or recording of assignments and other
Mortgage Loan Documents contemplated by the terms of this Agreement and
except that Seller may not be duly qualified to transact business as a
foreign corporation or licensed in one or more states if such qualification
or licensing is not necessary to ensure the enforceability of this
Agreement (or any agreement or document executed and delivered by Seller in
connection herewith).
(vi) In connection with its sale of the Mortgage Loans,
Seller is receiving new value. The consideration received by Seller upon
the sale of the Mortgage Loans constitutes at least fair consideration and
reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of Seller
contained in this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement (or
any agreement or document executed and delivered by Seller in connection
herewith) or which, either in any one instance or in the aggregate, are
reasonably likely to materially impair the ability of Seller to perform its
duties and obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(ix) Seller's performance of its duties and obligations
under this Agreement (and each agreement or document executed and delivered
by Seller in connection herewith) is in the ordinary course of business of
Seller and Seller's transfer, assignment and conveyance of the Mortgage
Loans pursuant to this Agreement are not subject to the bulk transfer or
similar statutory provisions in effect in any applicable jurisdiction. The
Mortgage Loans do not constitute all or substantially all of Seller's
assets.
(x) Seller has not dealt with any Person that may be
entitled, by reason of any act or omission of Seller, to any commission or
compensation in connection with the sale of the Mortgage Loans to 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.
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(xii) The representations and warranties contained in EXHIBIT
A hereto, subject to the exceptions to such representations and warranties
set forth on SCHEDULE V hereto, are true and correct in all material
respects as of the date hereof with respect to the Mortgage Loans
identified on SCHEDULE II.
(b) 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 (references therein to "Closing Date" being deemed to be references to
the "date of substitution" and references therein to "Cut-off Date" being deemed
to be references to the "most recent due date for the subject Replacement
Mortgage Loan on or before the date of substitution"). From and after the date
of substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. OBLIGATIONS OF SELLER. Each of the representations
and warranties contained in or required to be made by Seller pursuant to SECTION
6 of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to SECTION 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations or
warranties made by Seller with respect to the Mortgage Loans (subject to the
exceptions to such representations and warranties set forth in the Exception
Report), as of the date hereof in SECTION 6(a)(xii) or as of the Closing Date
pursuant to SECTION 4(b)(iii) or, in the case of 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 (or its
designee's) possession within the time period required herein or (b) such
document has not been properly executed or is otherwise defective on its face
(CLAUSE (a) and CLAUSE (b) each, a "DEFECT" (which term shall include the
"Defects" detailed in the immediately following paragraph) in the related
Mortgage File), and if such Breach or Defect, as the case may be, materially and
adversely affects, or is deemed hereby to materially and adversely affect, the
value of any Mortgage Loan or any successor REO Loan with respect thereto or the
interests of the Holders of any Class of Certificates (in which case such Breach
or Defect shall be a "MATERIAL BREACH" or a "MATERIAL DEFECT," as applicable),
then Seller shall, upon written request of Depositor, the Trustee, the
applicable Master Servicer or the applicable Special Servicer, not later than 90
days after the receipt by Seller of such written
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request (subject to the second succeeding paragraph, the "INITIAL RESOLUTION
PERIOD"): (i) cure such Breach or Defect in all material respects; (ii)
repurchase the affected Mortgage Loan at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement); or (iii) substitute, in
accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (PROVIDED that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the applicable Master Servicer for deposit into the applicable 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) Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) Seller has delivered to the Rating
Agencies, the applicable Master Servicer, the applicable Special Servicer and
the Trustee an Officer's Certificate that describes the reasons that the cure
was not effected within the Initial Resolution Period and the actions that it
proposes to take to effect the cure and that states that it anticipates the cure
will be effected within the additional 90 day period, then Seller shall have an
additional 90 days to cure such Material Defect or Material Breach. If any
Breach pertains to a representation or warranty that the related Mortgage Loan
Documents or any particular Mortgage Loan Document requires the related Borrower
to bear the costs and expenses associated with any particular action or matter
under such Mortgage Loan Document(s), then Seller shall cure such Breach within
the Initial Resolution Period by reimbursing the Trust Fund (by wire transfer of
immediately available funds) the reasonable amount of any such costs and
expenses incurred by the applicable Master Servicer, the applicable Special
Servicer, the Trustee or the Trust Fund that are the basis of such Breach and
have not been reimbursed by the related Borrower; PROVIDED, HOWEVER, that in the
event any such costs and expenses exceed $10,000, Seller shall have the option
to either repurchase the related Mortgage Loan at the applicable Purchase Price
or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, Seller shall remit the amount of such costs and
expenses and upon its making such remittance, Seller shall be deemed to have
cured such Breach in all respects. With respect to any repurchase of a Mortgage
Loan hereunder or 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 month of substitution, and scheduled payments of
principal and interest due with respect to each Mortgage Loan being repurchased
or replaced after the related Cut-off Date and received by the applicable Master
Servicer or the applicable Special Servicer on behalf of the Trust on or prior
to the related date of repurchase or substitution, shall be part of the Trust
Fund; and (C) scheduled payments of principal and interest due with respect to
such Qualified Substitute Mortgage Loan(s) during or prior to the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust after the related date of repurchase or substitution, shall not be part of
the Trust Fund, and Seller (or, if applicable, any person effecting the related
repurchase or substitution in the place of Seller) shall be entitled to receive
such payments promptly following receipt by the applicable Master
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Servicer or the applicable Special Servicer, as applicable, under the Pooling
and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to be
deemed to have a "Material Defect": (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 (ix) of the last
sentence of the first paragraph of SECTION 3 hereof; (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 as recorded or
as sent for recordation, together with a certificate stating that the original
intervening assignment was sent for recordation, or a copy of the intervening
assignment and the related recording information; or (e) the absence from the
Servicer 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. In addition, Seller shall cure
any Defect described in CLAUSE (b), (c), (e) or (f) of the immediately preceding
sentence as required in Section 2.02(b) of the Pooling and Servicing Agreement.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this SECTION 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this SECTION 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this SECTION 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this SECTION 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
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 such other Crossed Mortgage Loans satisfy the Crossed
Mortgage Loan Repurchase Criteria (as defined in the Pooling and Servicing
Agreement) and Seller can satisfy all other criteria for substitution or
repurchase of the affected Mortgage Loan(s) set forth in the
15
Pooling and Servicing Agreement. In the event that one or more of such other
Crossed Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase Criteria,
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. Seller shall be responsible for the cost of any Appraisal
required to be obtained by the applicable Master 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 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, Seller will not be
obligated to repurchase or substitute for the Mortgage Loan if the affected
Mortgaged Property may be released pursuant to the terms of any partial release
provisions in the related Mortgage Loan Documents and the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
Documents and (i) 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) Seller pays (or causes to be
paid) the applicable release price required under the Mortgage Loan Documents
and, to the extent not reimbursable out of the release price pursuant to the
related Mortgage Loan Documents, any additional amounts necessary to cover all
reasonable out-of-pocket expenses reasonably incurred by the applicable Master
Servicer, the applicable Special Servicer, the Trustee or the Trust Fund in
connection therewith, including any unreimbursed advances and interest thereon
made with respect to the Mortgaged Property that is being released and (iii)
such cure by release of such Mortgaged Property is effected within the time
periods specified for cure of a Material Breach or Material Defect in this
SECTION 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to 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 Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, receipt of the Mortgage File(s) for the related Qualified
Substitute Mortgage Loans(s)), shall promptly release the related Mortgage File
and Servicer File or cause them to be released, to Seller and shall execute and
deliver such instruments of transfer or assignment as shall be necessary to vest
in 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.
It is understood and agreed that the obligations of Seller set forth
in this SECTION 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. CROSSED MORTGAGE LOANS. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any
16
related Crossed Mortgage Loans, Seller and 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 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 Seller shall have furnished the Trustee, at Seller's expense, with an
Opinion of Counsel that such modification shall not cause an Adverse REMIC
Event; and PROVIDED, FURTHER, that if such Opinion of Counsel cannot be
furnished, Seller and 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. Any reserve or other
cash collateral or letters of credit securing the subject 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.
Section 9. RATING AGENCY FEES; COSTS AND EXPENSES ASSOCIATED
WITH A DEFEASANCE. 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
Seller of the parenthetical in representation (xxviii)(1) set forth on Exhibit A
hereto. 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 Seller of representation (liii)(F) set forth on Exhibit A hereto.
Section 10. REPRESENTATIONS AND WARRANTIES OF DEPOSITOR. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by CLAUSE (ii) of this PARAGRAPH (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any
17
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 any consent of, notice to, or filing with any
person, entity or governmental body, which has not been obtained or made by
Depositor, except where, in any of the instances contemplated by CLAUSE (i)
above or this CLAUSE (ii), the failure to do so will not have a material and
adverse effect on the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. SURVIVAL OF CERTAIN REPRESENTATIONS, WARRANTIES AND
COVENANTS. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under SECTIONS 7 and 13 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. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in SECTION 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. RECORDING COSTS AND EXPENSES. 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.
18
Section 14. NOTICES. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or transmitted via facsimile and
confirmed to it at Credit Suisse First Boston Mortgage Securities Corp., 00
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx,
Facsimile No.: (000) 000-0000 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal &
Compliance Department, Facsimile No.: (000) 000-0000), or such other address or
facsimile number as may be designated by Depositor to Seller in writing, or (b)
if sent to Seller, will be mailed, delivered or transmitted via facsimile and
confirmed to it at KeyBank National Association, 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Facsimile No.: (816)
221-8848 (with a copy to Xxxxxx X. Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000, Facsimile No.: (000) 000-0000), or such other address or facsimile number
as may be designated by Seller to 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 (a) the indemnities of Seller contained in that certain
Indemnification Agreement dated May 18, 2005, among Seller, Depositor, the
Initial Purchaser and the Underwriters, relating to, among other things,
information regarding the Mortgage Loans in the Prospectus Supplement and the
Offering Circular, subject to all limitations therein contained, shall also be
for the benefit of the officers and directors of Depositor, the Underwriters and
the Initial Purchaser and any person or persons who control Depositor, the
Underwriters and the Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended,
and (b) the rights of Depositor pursuant to this Agreement, subject to all
limitations herein contained, including those set forth in SECTION 7 of this
Agreement, may be assigned to the Trustee, for benefit of the
Certificateholders, as may be required to effect the purposes of the Pooling and
Servicing Agreement and, upon such assignment, the Trustee shall succeed to such
rights of Depositor hereunder; PROVIDED that the Trustee shall have no right to
further assign such rights to any other Person. No owner of a Certificate issued
pursuant to the Pooling and Servicing Agreement shall be deemed a successor or
permitted assign because of such ownership.
Section 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
19
Section 18. SEVERABILITY. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. FURTHER ASSURANCES. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. COUNTERPARTS. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. TREATMENT AS SECURITY AGREEMENT. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby
grant from Seller to Depositor a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any
guarantees), general intangibles, chattel paper, instruments, documents,
money, deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising from or
relating to any of the property described in the Mortgage Loans, including
the related Notes, Mortgages and title, hazard and other insurance
policies, identified on the Mortgage Loan Schedule or that constitute
Replacement Mortgage Loans, and all distributions with respect thereto
payable after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit and
investment property arising from or by virtue of the disposition of, or
collections with respect to, or insurance proceeds payable with respect to,
or claims against other persons with respect to, all or any part of the
collateral described in CLAUSE (i) above (including any accrued discount
realized on liquidation of any investment purchased at a discount), in each
case, payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in CLAUSES (i) and (ii) above payable after the Cut-off Date;
20
(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;
(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; and
(e) Seller at the direction of Depositor or its assignee, shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Depositor and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may prepare and file such UCC Financing
Statements as may be necessary or appropriate to accomplish the foregoing.
Section 22. RECORDATION OF AGREEMENT. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
21
IN WITNESS WHEREOF, the parties hereto have caused this
Mortgage Loan
Purchase Agreement to be duly executed and delivered as of the date first above
written.
KEYBANK NATIONAL ASSOCIATION,
as Seller
By:/s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Authorized Official
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.,
as Depositor
By:/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated by
reference in the
Mortgage Loan Purchase Agreement (the "AGREEMENT"), dated as of
May 18, 2005, between KeyBank National Association and Credit Suisse First
Boston Mortgage Securities Corp. Capitalized terms used herein without
definition have the meanings given them in or by reference in the Agreement or,
if not defined in the Agreement, in the Pooling and Servicing Agreement.
"AFFILIATE" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"ASSIGNMENTS" shall have the meaning given such term in SECTION 3 of
this Agreement.
"BORROWER" means the borrower under a Mortgage Loan.
"BREACH" shall have the meaning given such term in SECTION 7 of this
Agreement.
"CBA MORTGAGE LOAN" means any Mortgage Loan that constitutes a "CBA A
Loan" under the Pooling and Servicing Agreement.
"CERTIFICATE PURCHASE AGREEMENT" means the Certificate Purchase
Agreement, dated May 18, 2005, between Depositor and the Initial Purchaser.
"CERTIFICATES" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C2.
"CLOSING" shall have the meaning given that term in SECTION 2 of this
Agreement.
"CLOSING DATE" means May 26, 2005.
"CLOSING STATEMENT" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CROSSED MORTGAGE LOAN" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"CUT-OFF DATE" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in May 2005.
"DEFECT" shall have the meaning given such term in SECTION 7 of this
Agreement.
"DEPOSITOR" shall have the meaning given such term in the first
sentence of this Agreement.
Sch. I-1
"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 the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
SECTION 6(a)(xii) and under the written certificate described in SECTION
4(b)(iii) of this Agreement, which exceptions are set forth in SCHEDULE V
attached hereto and made a part hereof.
"INITIAL PURCHASER" means Credit Suisse First Boston LLC.
"INITIAL RESOLUTION PERIOD" shall have the meaning given such term in
SECTION 7 of this Agreement.
"LOAN AGREEMENT" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"MATERIAL BREACH" shall have the meaning given such term in SECTION 7
of this Agreement.
"MATERIAL DEFECT" shall have the meaning given such term in SECTION 7
of this Agreement.
"MORTGAGE FILE" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to SECTION 3 of this Agreement (subject to the first proviso in
SECTION 1 of this Agreement).
"MORTGAGE GROUP" shall have the meaning given such term in SECTION 7
of this Agreement.
"MORTGAGE LOAN" and "MORTGAGE LOANS" shall have the respective
meanings given such terms in Recital II of this Agreement.
"MORTGAGE LOAN DOCUMENTS" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"MORTGAGE LOAN ORIGINATOR" means any institution which originated a
Mortgage Loan for a related Borrower.
"MORTGAGE LOAN PURCHASE PRICE" means the amount described in SECTION 2
of this Agreement.
"MORTGAGE LOAN SCHEDULE" shall have the meaning given such term in
Recital II of this Agreement.
"OFFERING CIRCULAR" means the confidential offering circular dated May
18, 2005, describing certain classes of the Private Certificates.
Sch. I-2
"POOLING AND SERVICING AGREEMENT" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of May 1,
2005, among Depositor, the Master Servicer, the Special Servicer and the
Trustee, including, without limitation, the exhibits and schedules annexed
thereto.
"PRIMARY COLLATERAL" means with respect to any Crossed Mortgage Loan,
that portion of the Mortgaged Property designated as directly securing such
Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"PRIVATE CERTIFICATES" means the Certificates that are not Publicly
Offered Certificates.
"PROSPECTUS" means the Prospectus dated February 18, 2005, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-121904).
"PROSPECTUS SUPPLEMENT" means the Prospectus Supplement, dated May 18,
2005, 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-MFL, Class A-MFX, Class A-J,
Class B, Class C and Class D Certificates.
"SELLER" shall have the meaning given such term in the first sentence
of this Agreement.
"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 (subject to the first proviso in Section 1).
"TRUST FUND" shall have the meaning given such term in Recital II of
this Agreement.
"TRUSTEE" shall have the meaning given such term in SECTION 1 of this
Agreement.
"UNDERWRITERS" means Credit Suisse First Boston LLC, KeyBanc Capital
Markets, a division of McDonald Investments Inc., Greenwich Capital Markets,
Inc. and Wachovia Capital Markets, LLC.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated May
18, 2005, between Depositor and the Underwriters.
Sch. I-3
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Please see attached.
Sch. II-1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2005-C2
# CROSSED PROPERTY NAME ADDRESS
-----------------------------------------------------------------------------------------------
22 Elk Grove Marketplace 0000-0000 Xxxx Xxxx
23 Plaza 600 000 Xxxxxxx Xxxxxx
31 Five Star Plaza 6850 Five Star Boulevard
38 Rockford Crossings 249, 269, 275, 277 and 000 Xxxxx Xxxxx
52 Sony Computer Entertainment Building 00000 Xxxxxx Xxxxxx Xxxx
00 Xxxxxxxxxx Xxxxxxx Fair Shopping Center 0000 Xxxxx Xxxxxx
62 Bridgeport Landing 0000 Xxxxxxxxxx Xxx Xxxx
00 Xxxxxxxx Xxxxxxx Apartments 000 Xx. Xxxxxx'x Xxxxx
72 Phenix Crossing Shopping Center 0000 Xxxxxxxxxxx Xxxx
73 Centennial-Hanford Center Phase II 168-204 North 12th Avenue
81 Stowaway Self Storage 0000 Xxxxxxxxxx Xxxx
00 Xxxxxxxxxx Xxxx Self Storage 0000 Xxxxxxxxxx Xxxx
86 Village of Overland Pointe 0000-0000 Xxxx 000xx Xx.
88 Teakwood Village Apartments 000 Xxxxxxx Xxxx
108 Xxxx & Grand Mini Storage 00000 Xxxx Xxxx Xxxx
116 Consolidated Metco Building 000 Xxxxx Xxx Xxxxx
117 Fiesta Center II 1285 - 0000 Xxxx Xxxx Xxxxxx
122 Sunrise Apartments 0000 Xxxx 00xx Xxxxxx
127 Xxxxxx'x Ground Lease 000 Xxxx Xxxxxxx Xxxxxx
000 Xxxx Xxxxxxxxxx Shopping Center 000 Xxxx Xxxxxx Xxxx
Sch. II-2
ZIP MORTGAGE NET MORTGAGE ORIGINAL
# CROSSED PROPERTY NAME CITY STATE CODE RATE RATE BALANCE
---------------------------------------------------------------------------------------------------------------------------------
00 Xxx Xxxxx Xxxxxxxxxxx Xxx Xxxxx XX 00000 5.4900% 5.36865% $ 26,900,000
00 Xxxxx 000 Xxxxxxx XX 00000 5.4400% 5.38865% $ 22,000,000
00 Xxxx Xxxx Xxxxx Xxxxxxx XX 00000 5.6600% 5.60865% $ 15,000,000
00 Xxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 5.2900% 5.23865% $ 11,440,000
00 Xxxx Xxxxxxxx Xxxxxxxxxxxxx Xxxxxxxx Xxx Xxxxx XX 00000 5.4200% 5.31865% $ 8,500,000
00 Xxxxxxxxxx Xxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 5.7000% 5.59865% $ 7,600,000
00 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxx XX 00000 5.5600% 5.50865% $ 6,600,000
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000 5.4600% 5.35865% $ 6,100,000
00 Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 5.0300% 4.97865% $ 5,535,000
00 Xxxxxxxxxx-Xxxxxxx Xxxxxx Xxxxx XX Xxxxxxx XX 00000 5.4500% 5.34865% $ 5,475,000
00 Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000 5.3600% 5.30865% $ 4,950,000
00 Xxxxxxxxxx Xxxx Xxxx Xxxxxxx Xxxxxxxx XX 00000 5.3600% 5.30865% $ 4,725,000
00 Xxxxxxx xx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 5.1500% 5.09865% $ 4,625,000
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxx XX 00000 5.5300% 5.47865% $ 4,600,000
000 Xxxx & Xxxxx Xxxx Xxxxxxx Xxxxxxxx XX 00000 5.7300% 5.67865% $ 3,585,000
000 Xxxxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx XX 00000 6.3300% 6.27865% $ 3,150,000
000 Xxxxxx Xxxxxx XX Xxxxxxxx XX 00000 5.5000% 5.44865% $ 3,100,000
000 Xxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 5.6500% 5.59865% $ 2,858,000
000 Xxxxxx'x Xxxxxx Xxxxx Xxxx Xx Xxx XX 00000 5.7500% 5.64865% $ 2,375,000
000 Xxxx Xxxxxxxxxx Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5.7200% 5.66865% $ 2,319,000
REM. ORIG REM.
CUT-OFF TERM TO MATURITY AMORT. AMORT.
# CROSSED PROPERTY NAME BALANCE MATURITY DATE ARD TERM TERM
------------------------------------------------------------------------------------------------------------------------------------
22 Elk Grove Marketplace $ 26,870,501 119 4/1/2015 N/A 360 000
00 Xxxxx 000 $ 21,975,647 119 4/1/2015 N/A 360 359
31 Five Star Plaza $ 15,000,000 120 5/1/2015 N/A 360 360
00 Xxxxxxxx Xxxxxxxxx $ 11,440,000 120 5/1/2035 5/1/2015 360 360
52 Sony Computer Entertainment Building $ 8,500,000 120 5/1/2015 N/A 360 360
58 Zanesville Country Fair Shopping Center $ 7,591,990 119 4/1/2015 N/A 360 359
62 Bridgeport Landing $ 6,600,000 120 5/1/2015 N/A 360 360
67 Highwood Village Apartments $ 6,087,444 118 3/1/2015 N/A 360 358
72 Phenix Crossing Shopping Center $ 5,535,000 60 5/1/2010 N/A Interest Only Xxxxxxxx Xxxx
00 Xxxxxxxxxx-Xxxxxxx Xxxxxx Xxxxx XX $ 5,468,951 119 4/1/2015 N/A 360 359
81 Stowaway Self Storage $ 4,950,000 120 5/1/2015 N/A 300 300
00 Xxxxxxxxxx Xxxx Self Storage $ 4,725,000 120 5/1/2015 N/A 300 300
86 Village of Overland Pointe $ 4,625,000 120 5/1/2035 5/1/2015 360 360
88 Teakwood Village Apartments $ 4,592,868 119 4/1/2015 N/A 300 299
108 Xxxx & Grand Mini Storage $ 3,581,243 119 4/1/2015 N/A 360 359
116 Consolidated Metco Building $ 3,145,681 59 4/1/2030 4/1/2010 300 299
117 Fiesta Center II $ 3,096,607 119 4/1/2015 N/A 360 359
122 Sunrise Apartments $ 2,839,994 114 11/1/2014 N/A 360 354
127 Xxxxxx'x Ground Lease $ 2,371,439 119 4/1/2015 N/A 300 299
000 Xxxx Xxxxxxxxxx Xxxxxxxx Xxxxxx $ 2,316,565 119 4/1/2015 N/A 360 359
UNITS/
SQ. FT./
MONTHLY ROOMS/ INTEREST CALCULATION
# CROSSED PROPERTY NAME PAYMENT PADS (30/360 / ACTUAL/360)
-------------------------------------------------------------------------------------------------------
22 Elk Grove Marketplace $ 152,567 188,762 Actual/360
00 Xxxxx 000 $ 124,087 213,596 Actual/360
31 Five Star Plaza $ 86,680 133,451 Actual/360
00 Xxxxxxxx Xxxxxxxxx $ 63,456 89,047 Actual/360
52 Sony Computer Entertainment Building $ 47,836 43,519 Actual/360
58 Zanesville Country Fair Shopping Center $ 44,110 164,583 Actual/360
62 Bridgeport Landing $ 37,723 36,944 Actual/360
67 Highwood Village Apartments $ 34,482 120 Actual/360
72 Phenix Crossing Shopping Center 23,201 56,563 30/360
73 Centennial-Hanford Center Phase II $ 30,915 44,528 Actual/360
81 Stowaway Self Storage $ 29,985 109,600 Actual/360
00 Xxxxxxxxxx Xxxx Self Storage $ 28,622 98,800 Actual/360
86 Village of Overland Pointe $ 25,254 20,055 Actual/360
88 Teakwood Village Apartments $ 28,331 134 Actual/360
108 Xxxx & Grand Mini Storage $ 20,876 81,635 Actual/360
116 Consolidated Metco Building $ 20,936 228,000 Actual/360
117 Fiesta Center II $ 17,601 16,616 Actual/360
122 Sunrise Apartments $ 16,497 75 Actual/360
127 Xxxxxx'x Ground Lease $ 14,941 61,000 30/360
000 Xxxx Xxxxxxxxxx Shopping Center $ 13,489 26,100 Actual/360
ADMINISTRATION EARTHQUAKE
# CROSSED PROPERTY NAME FEES DUE DATE ARD (Y/N) DEFEASANCE INSURANCE
---------------------------------------------------------------------------------------------------------------------------
22 Elk Grove Marketplace 0.12135% 1 No Yes Xx
00 Xxxxx 000 0.05135% 1 No Yes No
31 Five Star Plaza 0.05135% 1 No Yes No
38 Rockford Crossings 0.05135% 1 Yes Yes N/A
52 Sony Computer Entertainment Building 0.10135% 1 No No No
58 Zanesville Country Fair Shopping Center 0.10135% 1 No Yes N/A
62 Bridgeport Landing 0.05135% 1 No Yes No
67 Highwood Village Apartments 0.10135% 1 No Yes N/A
72 Phenix Crossing Shopping Center 0.05135% 1 No No N/A
73 Centennial-Hanford Center Phase II 0.10135% 1 No Yes No
81 Stowaway Self Storage 0.05135% 1 No Yes N/A
00 Xxxxxxxxxx Xxxx Self Storage 0.05135% 1 No Yes N/A
86 Village of Overland Pointe 0.05135% 1 Yes Yes N/A
88 Teakwood Village Apartments 0.05135% 1 No Yes N/A
108 Xxxx & Grand Mini Storage 0.05135% 1 No No N/A
116 Consolidated Metco Building 0.05135% 1 Yes Yes N/A
117 Fiesta Center II 0.05135% 1 No Yes N/A
122 Sunrise Apartments 0.05135% 1 No Yes No
127 Xxxxxx'x Ground Lease 0.10135% 1 No No N/A
000 Xxxx Xxxxxxxxxx Shopping Center 0.05135% 1 No No N/A
ENVIRONMENTAL FEE/ LETTER OF LOAN GROUP
# CROSSED PROPERTY NAME INSURANCE LEASEHOLD CREDIT (Y/N) #
------------------------------------------------------------------------------------------------------------------
22 Elk Grove Marketplace No Fee Xx 0
00 Xxxxx 000 Xx Fee No 1
31 Five Star Plaza No Fee No 1
38 Rockford Crossings No Fee No 1
52 Sony Computer Entertainment Building No Fee No 1
58 Zanesville Country Fair Shopping Center No Fee No 1
62 Bridgeport Landing No Fee Xx 0
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx Xx Fee No 2
72 Phenix Crossing Shopping Center No Fee No 1
73 Centennial-Hanford Center Phase II No Fee No 1
81 Stowaway Self Storage No Fee No 1
00 Xxxxxxxxxx Xxxx Self Storage No Fee No 1
86 Village of Overland Pointe No Fee No 1
88 Teakwood Village Apartments No Fee No 2
108 Xxxx & Grand Mini Storage No Fee No 1
116 Consolidated Metco Building No Fee No 1
117 Fiesta Center II No Leasehold No 1
122 Sunrise Apartments No Fee No 2
127 Xxxxxx'x Ground Lease No Fee No 1
000 Xxxx Xxxxxxxxxx Shopping Center No Fee No 1
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
None.
Sch. III-1
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None.
Sch. IV-1
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:
(a) Reference is made to the Representations and Warranties set forth in
EXHIBIT A attached hereto corresponding to the paragraph numbers set forth
below:
EXCEPTION (xx):
Correspondent fees are payable with respect to each of the following
Mortgage Loans:
Loan No. 10024138/Elk Grove Marketplace
Loan No. 10026435/Highwood Village
Loan Xx. 00000000/Xxxxxxxxxx-Xxxxxxx Xxxxxx XX
Xxxx Xx. 00000000/Xxxxxxxxxx Xxxxxx Fair
EXCEPTION (xxiii):
With respect to each of the following Mortgage Loans, the insurer that
issued the fire and extended perils insurance policy met the requirements of the
Pooling and Servicing Agreement regarding a Xxxxx'x rating, but did not meet the
requirements regarding an S&P rating:
Loan No. 10026728/West Burlington Shopping Center
Loan No. 10025184/Sony Computer Entertainment Building
Loan No. 10027006/Village of Overland Pointe
With respect to each of the following Mortgage Loans, the insurer that
issued the fire and extended perils insurance policy did not meet the
requirements regarding an S&P rating and was not rated by Xxxxx'x:
Loan No. 10026291/Consolidated Metco Building
Loan No. 10026681/Xxxx & Grand Mini Storage
Loan No. 10026875/Plaza 600
Loan No. 10025867/Five Star Plaza
With respect to Loan Nos. 10026795/Phenix Crossing, the related Mortgage
Loan documents provide that the related borrower is required to maintain
insurance coverage for acts of terrorism if such coverage is commercially
reasonable for properties similar to the related Mortgaged Property; provided,
however, that the related borrower will not be required to maintain such
terrorism coverage if (i) borrower confirms in writing that it will protect and
hold the mortgagee harmless from losses associated with terrorism risks by,
among other things, depositing with the mortgagee sums sufficient to pay all
uninsured costs related to a restoration
Sch. V-1
following any act of terrorism, or prepaying the related Mortgage Loan in
accordance with the provisions of the related Mortgage Loan documents (including
payment of applicable prepayment consideration), and (ii) the indemnitor for the
related Mortgage Loan executes a guaranty pursuant to which such indemnitor
guarantees payment of all losses associated with terrorism risks and such
indemnitor maintains a specified net worth and a specified loan to value ratio
for all properties in which such entity has a direct or indirect ownership
interest.
With respect to Loan No. 10026875/Plaza 600, the related Mortgage Loan
documents provide that the related borrower is not required to carry terrorism
coverage if the cost of such coverage exceeds 150% of the cost of such coverage
as of the date of the closing of the Mortgage Loan.
EXCEPTION (xxxi):
The following exceptions are applicable with respect to Loan Xx.
00000000/Xxxxxx Xxxxxx XX:
(B) the ground lease provides that no modification that would change
the lease term or materially affect the leasehold mortgagee may be made
without the leasehold mortgagee's consent, but it does not provide that any
such action without such consent is not binding on the leasehold mortgagee,
its successors and assigns.
(C) The ground lease extends 8 rather than 10 years beyond the
amortization term of the related Mortgage Loan.
(L) The ground lease provides that in the event of a termination of
the ground lease due to a default by borrower/lessee, the lessor will enter
into a new lease with the leasehold mortgagee, but it does not expressly
address a rejection of the ground lease in a bankruptcy proceeding.
EXCEPTION (xxxviii):
With respect to Loan No. 10026753/Teakwood Village Apartments, the related
borrower may incur additional debt secured by the related mortgaged real
property on a subordinate basis upon the written approval of the holder of the
related mortgage and the satisfaction of various specified conditions, including
specified debt-service-coverage and loan-to-value ratios, execution of an
intercreditor and subordination agreement by an institutional lender, execution
of a lockbox agreement and, if required, receipt of rating agency confirmation.
With respect to Loan No. 10025867/Five Star Plaza, in connection with a
sale of the related Mortgaged Property and assumption of the Mortgage Loan which
may be approved by the holder of the related Mortgage, the members of the
borrowing entity may obtain mezzanine financing secured by such ownership
interests upon the prior approval of the holder of the related Mortgage and the
satisfaction of various specified conditions, including specified debt service
coverage and loan-to-value ratios, execution of an intercreditor agreement by
the mezzanine lender and establishment of a lockbox arrangement.
Sch. V-2
EXCEPTION (xxxix):
With respect to Loan Nos. 10023643/Forest Plaza (Roundys), 10026681/Xxxx &
Grand and 10025867/Five Star Plaza, the related Mortgage Loan documents do not
include an express covenant by the borrower that it shall remain in material
compliance with all material licenses, permits and other legal requirements
necessary and required to conduct its business, but the Mortgage Loan documents
do include a covenant by the borrower that it will comply with all laws,
ordinances and regulations governing the use of the Mortgaged Property.
EXCEPTION (xl):
With respect to Loan No. 10026317/Fiesta Center II, the Mortgaged Property
is not a separate tax lot, but it is exempt from taxation because the Mortgaged
Property is ground leased from the state. The Mortgage Loan documents provide
that Lender may require the Mortgaged Property to be a separate tax lot if it is
ever subject to taxation.
With respect to Loan No. 10026795/Phenix Crossing, the Mortgaged
Property was recently subject to a lot split. All steps have been taken to cause
the Mortgaged Property to be a separate tax lot in the next tax year and an
endorsement to the related title insurance policy to such effect was obtained.
EXCEPTION (xli):
With respect to Loan No. 10026753/Teakwood Village Apartments, the
Mortgaged Property is located in flood zone "AE". The related Mortgage Loan
documents include a $2,312,000 cap on the amount of flood insurance that may be
required by the holder of the related Mortgage. This cap was determined by
applying FEMA's loss estimating guidelines to calculate a damage cost estimate
for a flood at the Mortgaged Property.
EXCEPTION (xlvii):
With respect to Loan No. 10026753/Teakwood Village Apartments, the related
Borrower has the right to obtain the release of an unimproved portion of the
Mortgaged Property, identified in the related Mortgage, without payment of a
release price or partial defeasance, upon satisfaction of various specified
criteria, including, among other things, satisfaction of specified loan to value
and debt service coverage ratios.
EXCEPTION (lv):
With respect to Loan No. 10026291/Consolidated Metco Building, the
Anticipated Repayment Date is five years following the origination of the
Mortgage Loan.
Sch. V-3
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to the
knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of Seller or
any servicer acting on its behalf regarding the matters referred to, in each
case without having conducted any independent inquiry or due diligence with
respect to such matters and without any actual or implied obligation to make
such inquiry or perform such due diligence, other than making such inquiry or
performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of Seller. Wherever there is a
reference to receipt by, or possession of, Seller of any information or
documents, or to any action taken by Seller or not taken by Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either Seller or any servicer acting on its behalf.
Seller hereby represents and warrants, subject to the exceptions set forth
in the Exception Report annexed to this Agreement as Schedule V, with respect to
the Mortgage Loans that as of the date hereinbelow specified or, if no such date
is specified, as of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to Seller), participation
or pledge, and Seller had good and marketable title to, and was the sole owner
of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association, savings bank,
commercial bank, credit union, or insurance company, which is supervised and
examined by a Federal or State authority, or by a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act (any of the foregoing, including Seller, a "Qualified
Originator"); or
(B) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"), then:
1. such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using application forms and
related credit documents approved by the Qualified Originator;
2. the Qualified Originator approved each application and
related credit documents before a commitment by the Non-Qualified Originator was
issued, and no such commitment was issued until the Qualified Originator agreed
to fund such Mortgage Loan;
Exh. A-1
3. the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with the Qualified
Originator; and
4. the closing documents for the Mortgage Loan were prepared on
forms approved by the Qualified Originator, and, pursuant to the Non-Qualified
Originator's ongoing, standing relationship with the Qualified Originator,
either:
(x) such closing documents reflect the Qualified Originator as
the original mortgagee, and such Mortgage Loan was actually funded by the
Qualified Originator at the closing thereof;
(y) such closing documents reflect the Non-Qualified Originator
as the original mortgagee, but include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified Originator at the time of the
closing of the Mortgage Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Non-Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such Non-Qualified Originator; or
(z) such closing documents reflect the Non-Qualified Originator
as the original mortgagee, but include assignment documents executed by the
Non-Qualified Originator in favor of the Qualified Originator at the time of the
closing of the Mortgage Loan, reflecting the Qualified Originator as the
successor and assign to the Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such Non-Qualified Originator.
(iii) Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to Depositor constitutes a legal,
valid and binding assignment of such Mortgage Loan;
(iv) Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or any other interests or security interests
of any nature encumbering such Mortgage Loan, except for interests in servicing
rights created or granted under the Pooling and Servicing Agreement,
subservicing agreements and/or servicing rights purchase agreements being
executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related Borrower's
representations and covenants in the related Mortgage Loan Documents and such
other due diligence as a reasonably prudent commercial mortgage lender would
deem appropriate, the Borrower, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the Mortgaged
Property which were valid and in full force and effect as of the origination
date and, to Seller's actual knowledge, such licenses, permits and
authorizations are still valid and in full force and effect;
(vi) Each related Note, Mortgage, Assignment of Leases (if any)
and other agreement executed by or for the benefit of the related Borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related Borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
Exh. A-2
laws affecting the enforcement of creditors' rights or by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law); and there is no right of offset, rescission, abatement or
diminution or valid defense or counterclaim available to the related Borrower
with respect to such Note, Mortgage, Assignment of Leases and other agreements,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(vii) The Mortgage File contains an Assignment of Leases, either
as a separate instrument or incorporated into the related Mortgage. Each related
Assignment of Leases creates a valid first priority collateral assignment of, or
a valid first priority lien or security interest in, certain rights under the
related lease or leases, subject only to a license granted to the related
Borrower to exercise certain rights and to perform certain obligations of the
lessor under such lease or leases, including the right to operate the related
leased property, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); no
person other than the related Borrower owns any interest in any payments due
under such lease or leases that is superior to or of equal priority with the
lender's interest therein;
(viii) Each related assignment of Mortgage from Seller to the
Trustee and related assignment of the Assignment of Leases, if the Assignment of
Leases is a separate document from the Mortgage, is in recordable form (but for
the insertion of the name and address of the assignee and any related recording
information, which is not yet available to Seller), and such assignments and any
assignment of any other agreement executed by or for the benefit of the related
Borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from Seller to the Trustee constitutes the legal, valid and
binding assignment from Seller to the Trustee, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded in whole or in part and (B) each related
Mortgaged Property has not been released, in whole or in part, from the lien of
the related Mortgage in any manner which materially interferes with the security
intended to be provided by such Mortgage;
(x) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
except that, in the case of each of the CBA Mortgage Loans, respectively, the
related Mortgage encumbering the related Mortgaged Property also secures one or
more other mortgage loans; and such Mortgaged Property is free and clear of any
mechanics' and materialmen's liens which are
Exh. A-3
prior to or equal with the lien of the related Mortgage, except those which are
insured against by a lender's title insurance policy (as described below). A UCC
Financing Statement has been filed and/or recorded (or sent for filing or
recording) in all places necessary to perfect a valid security interest in the
personal property necessary to operate the Mortgaged Property as currently
operated; and such security interest is a first priority security interest,
subject to any prior purchase money security interest in such personal property,
any personal property leases applicable to such personal property and any other
security interest in such personal property which do not, individually or in the
aggregate, materially interfere with the security intended to be provided for
such Mortgage Loan. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates a valid and enforceable lien on the property described
therein, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). In the case
of any Mortgage Loan secured by a hotel, the related loan documents contain such
provisions as are necessary and UCC Financing Statements have been filed as
necessary, in each case, to perfect a valid first priority security interest in
the related operating revenues with respect to such Mortgaged Property.
Notwithstanding the foregoing, no representation is made as to the perfection of
any security interest in rent, operating revenues 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) Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
(xii) Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien
on the fee or leasehold interest of the related Borrower in the principal amount
of such Mortgage Loan or allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related Mortgage) after all
advances of principal and is insured by an ALTA lender's title insurance policy
(except that if such policy is yet to be issued, such insurance may be evidenced
by a "marked up" pro forma policy or title commitment in either case marked as
binding and countersigned by the title company or its authorized agent, either
on its face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the named
mortgagee and its successors and assigns (as sole insured) as to such lien,
subject only to (A) the lien of current real property taxes, water charges,
sewer rents and assessments not yet delinquent or accruing interest or
penalties, (B) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property, (C) the exceptions (general and specific) and exclusions set
forth in such policy, none of which, individually or in the aggregate,
materially interferes with the current general use of the Mortgaged Property or
materially interferes with the security intended to be provided by such
Exh. A-4
Mortgage or with the related Borrower's ability to pay its obligations when they
become due or the value of the Mortgaged Property, (D) the rights of tenants, as
tenants only, under leases, including subleases, pertaining to the related
Mortgaged Property, (E) if the related Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the mortgage instrument for that other
Mortgage Loan and (F) if the related Mortgaged Property is a unit in a
condominium, the related condominium declaration (items (A), (B), (C), (D), (E)
and (F) collectively, "Permitted Encumbrances"), and except that, in the case of
each of the CBA Mortgage Loans, respectively, the related Mortgage encumbering
the related Mortgaged Property also secures one or more other mortgage loans;
and with respect to each Mortgage Loan, such Permitted Encumbrances do not,
individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; the
premium for such policy was paid in full; such policy (or if it is yet to be
issued, the coverage to be afforded thereby) is issued by a title insurance
company licensed to issue policies in the state in which the related Mortgaged
Property is located (unless such state is Iowa) and is assignable (with the
related Mortgage Loan) to Depositor and the Trustee without the consent of or
any notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by this Agreement; no claims have
been made under such policy and Seller has not undertaken any action or omitted
to take any action, and has no knowledge of any such act or omission, which
would impair or diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted). If any of the inspection or
engineering reports referred to above in this paragraph (xv) revealed any
immediate repair items, then one of the following is true: (A) the repairs
and/or maintenance necessary to correct such condition have been completed in
all material respects; (B) an escrow of funds is required or a letter of credit
was obtained in an amount reasonably estimated to be sufficient to complete the
repairs and/or maintenance necessary to correct such condition; or (C) the
reasonable estimation at the time of origination of the Mortgage Loan of the
cost to complete the repairs and/or maintenance necessary to correct such
condition represented no more than the greater of (1) $50,000 and (2) 2% of the
value of the related Mortgaged Property as reflected in an appraisal conducted
in connection with the origination of the subject Mortgage Loan; as of the
closing date for each Mortgage Loan and, to Seller's knowledge, as of the date
hereof, there is no proceeding pending for the total or partial condemnation of
such Mortgaged Property that would have a material adverse effect on the use or
value of the Mortgaged Property;
Exh. A-5
(xvi) Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any
other contingent interest feature or a negative amortization feature other than
the ARD Loans which may have negative amortization from and after the related
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan, and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither Seller nor, to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and the origination, servicing and collection of each Mortgage Loan is in
all respects legal, proper and prudent in accordance with customary commercial
mortgage lending standards, and no other person has been granted or conveyed the
right to service the Mortgage Loans or receive any consideration in connection
therewith, except as provided in the Pooling and Servicing Agreement or any
permitted subservicing agreements and/or servicing rights purchase agreements
being executed and delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith, all such escrows and deposits are being
conveyed by Seller to Depositor and identified as such with appropriate detail,
and any and all requirements for the disbursement of any such escrows that have
been disbursed on or prior to the date hereof have been complied with in all
material respects;
Exh. A-6
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all Mortgaged Properties in California or in a seismic zone 4 or 5
have had a seismic assessment done and earthquake insurance was obtained to the
extent any such Mortgaged Property has a probable maximum loss in the event of
an earthquake of greater than twenty percent (20%) of the replacement value of
the related improvements; if the Mortgaged Property for any Mortgage Loan is
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas, then, such
Mortgaged Property is insured by windstorm insurance in an amount at least equal
to the lesser of (i) the outstanding principal balance of such Mortgage Loan and
(ii) 100% of the insurable replacement cost of the improvements located on the
related Mortgaged Property; the Mortgaged Properties securing all of the
Mortgage Loans having a Cut-off Date Principal Balance in excess of $3,000,000
have, as of the date hereof, insurance policies in place with respect to acts of
terrorism or damage related thereto (excluding acts involving nuclear,
biological or chemical terrorism), except any such Mortgage Loans that are
listed on the applicable Exception Report. All premiums on such insurance
policies required to be paid as of the date hereof have been paid; such
insurance policies or the related insurance certificates require prior notice to
the insured of reduction in coverage, termination or cancellation, and no such
notice has been received by Seller; such insurance names the lender under the
Mortgage Loan and its successors and assigns as a named or additional insured;
each related Mortgage Loan obligates the related Borrower to maintain all such
insurance and, at such Borrower's failure to do so, authorizes the lender to
maintain such insurance at the Borrower's cost and expense and to seek
reimbursement therefor from such Borrower;
(xxiv) There is no monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan. To Seller's knowledge,
there is no (A) non-monetary default, breach, violation or event of acceleration
existing under the related Mortgage Loan or (B) event (other than payments due
but not yet delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a default, breach,
violation or event of acceleration, which default, breach, violation or event of
acceleration, in the case of either (A) or (B), would materially and adversely
affect the use or value of the Mortgage Loan or the related Mortgaged Property.
Notwithstanding the foregoing, this representation and warranty does not address
or otherwise cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation or warranty made by Seller elsewhere in this Exhibit A or the
Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
Exh. A-7
(xxvi) (A) Each related Mortgage contains provisions so as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or
(B), as the enforcement of the Mortgage may be limited by bankruptcy,
insolvency, reorganization, moratorium, redemption or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). No Borrower is a debtor in a state or federal bankruptcy or insolvency
proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; and the related Borrower agreed to indemnify,
defend and hold the mortgagee and its successors and assigns harmless from and
against losses, liabilities, damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by, or asserted against, any such party resulting from a
breach of the foregoing representations, warranties or covenants given by the
Borrower in connection with such Mortgage Loan. A Phase I environmental report
(or, with respect to residential cooperative loans with an original principal
balance of $350,000 or less, a transaction screen meeting ASTM standards) and,
with respect to certain Mortgage Loans, a Phase II environmental report was
conducted by a reputable independent environmental consulting firm in connection
with such Mortgage Loan, which report (or transaction screen) did not indicate
any material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or material
existence of hazardous materials was indicated in any such report (or
transaction screen), then at least one of the following statements is true: (A)
funds reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material existence
of hazardous materials have been escrowed by the related Borrower and held by
the related mortgagee; (B) if the environmental report recommended an operations
and maintenance plan, but not any material expenditure of funds, an operations
and maintenance plan has been required to be obtained by the related Borrower;
(C) the environmental condition identified in the related environmental report
was remediated or abated in all material respects prior to the date hereof; (D)
a no further action or closure letter was obtained from the applicable
governmental regulatory authority (or the environmental issue affecting the
related Mortgaged Property was otherwise listed by such governmental authority
as "closed"); (E) such conditions or circumstances identified in the Phase I
environmental report were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation; (F) a party unrelated to the Borrower with financial resources
reasonably estimated to be adequate to cure the condition or circumstance
provided a guaranty or indemnity to the related Borrower to cover
Exh. A-8
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related Mortgage File. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impaired property environmental insurance
policy was obtained with respect to each such Mortgage Loan. Each of such
secured creditor impaired property environmental insurance policies is a part of
the related Mortgage File. Each of such environmental insurance policies is in
full force and effect, is in an amount not less than the 100% of the balance of
the related Mortgage Loan, and has a term extending not less than five years
after the maturity date of the related Mortgage Loan; the premiums for such
policies have been paid in full; the Trustee is named as an insured under each
of such policies; and Seller has delivered to the insurer all related
environmental reports in its possession. To Seller's knowledge, in reliance on
the environmental reports referred to in the second sentence of this paragraph
(xxvii) and except as set forth in such environmental reports, each Mortgaged
Property is in material compliance with all applicable federal, state and local
environmental laws, and to Seller's knowledge, no notice of violation of such
laws has been issued by any governmental agency or authority, except, in all
cases, as indicated in such environmental reports or other documents previously
provided to the Rating Agencies; and Seller has not taken any action which would
cause the Mortgaged Property to not be in compliance with all federal, state and
local environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders) or any transfers in connection with the death or disability of
owners of the Borrower or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related Borrower in connection
with the assignment of a proprietary lease for a unit in the related Mortgaged
Property by a tenant-shareholder of the related Borrower to other persons who by
virtue of such transfers become tenant-shareholders in the related Borrower,
each Mortgage Loan also contains the provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage (and the Mortgage requires the mortgagor
to pay all fees and expenses associated with obtaining such consent), a majority
interest in the related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are
within the boundaries of the related Mortgaged Property, except for
encroachments onto adjoining parcels for which Seller has obtained title
insurance against losses arising therefrom or that do not materially and
adversely affect the use or value of such Mortgaged Property. No improvements on
adjoining parcels encroach onto the related Mortgaged Property except for
encroachments
Exh. A-9
that do not materially and adversely affect the value of such Mortgaged
Property, the security provided by the Mortgage, the current use of the
Mortgaged Property, or the related Borrower's operations at the Mortgaged
Property;
(xxx) The information pertaining to the Mortgage Loans which is
set forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement
is complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-off
Date);
(xxxi) With respect to any Mortgage Loan where all or any portion
of the estate of the related Borrower therein is a leasehold estate under a
ground lease, and the related Mortgage does not also encumber the related
lessor's fee interest in such Mortgaged Property, based upon the terms of the
ground lease and any estoppel received from the ground lessor, Seller represents
and warrants that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest of the lessee to
be encumbered by the related Mortgage and does not restrict the use of the
related Mortgaged Property by such lessee, its successors or assigns in a manner
that would adversely affect the security provided by the related Mortgage. To
Seller's knowledge, there has been no material change in the terms of the ground
lease since its recordation, except by any written instruments which are
included in the related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease may not be amended,
modified, canceled or terminated without the prior written consent of the lender
and that any such action without such consent is not binding on the lender, its
successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all circumstances, may be
exercised, and would be enforceable, by the lender) that extends not less than
10 years beyond the amortization term of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by Seller, the ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage, subject to
Permitted Encumbrances and liens that encumber the ground lessor's fee interest;
(E) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent of the lessor
thereunder;
(F) The ground lease is in full force and effect, Seller has no
actual knowledge that any default beyond applicable notice and grace periods has
occurred, and to Seller's knowledge, there is no existing condition which, but
for the passage of time or giving of notice, would result in a default under the
terms of the ground lease;
Exh. A-10
(G) The ground lease or ancillary agreement, which is part of
the Mortgage File, between the lessor and the lessee requires the lessor to give
notice of any default by the lessee to the lender;
(H) The lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other action
so long as the lender is proceeding diligently) to cure any default under the
ground lease which is curable after the receipt of notice of any default before
the lessor may terminate the ground lease. All rights of the lender under the
ground lease and the related Mortgage (insofar as it relates to the ground
lease) may be exercised by or on behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial mortgage lender. The lessor is not permitted to disturb the
possession, interest or quiet enjoyment of any subtenant of the lessee in the
relevant portion of the Mortgaged Property subject to the ground lease for any
reason, or in any manner, which would adversely affect the security provided by
the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied either
to the repair or restoration of all or part of the related Mortgaged Property,
with the lender or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses (except in 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 to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except that in the case of
condemnation awards, the ground lessor may be entitled to a portion of such
award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation award in respect of a
total or substantially total loss or taking of the related Mortgaged Property
will be applied first to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest (except as provided by
applicable law or in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender, taking into
account the relative duration of the ground lease and the related Mortgage and
the ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan). Until the principal
balance and accrued interest are paid in full, neither the lessee nor the lessor
under the ground lease will have an option to terminate or modify the ground
lease without the prior written consent of the lender as a result of any
casualty or partial condemnation; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter into a new lease upon
termination of the ground lease for any reason, including rejection of the
ground lease in a bankruptcy proceeding;
Exh. A-11
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the lender would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related Mortgage File that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) Except in the case of each of the CBA Mortgage Loans,
respectively, with respect to those Mortgage Loans that are cross-collateralized
or cross-defaulted, all other loans that are cross-collateralized or
cross-defaulted with such Mortgage Loans are being transferred to Depositor
hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (B) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
lender or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, in this Exhibit A or in the Exception
Report;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage
Exh. A-12
Loan having an original principal balance in excess of $5,000,000 require that
the related Borrower be a Single-Purpose Entity (for this purpose,
"Single-Purpose Entity" shall mean an entity, other than an individual, having
organizational documents which provide substantially to the effect that it is
formed or organized solely for the purpose of owning and operating one or more
Mortgaged Properties, is prohibited from engaging in any business unrelated to
such property and the related Mortgage Loan, does not have any assets other than
those related to its interest in the related Mortgaged Property or its
financing, or any indebtedness other than as permitted under the related
Mortgage Loan). To Seller's actual knowledge, each Borrower has fully complied
with the requirements of the related Note and Mortgage and Borrower's
organizational documents regarding Single-Purpose Entity status;
(xxxviii) Except in cases where the related Mortgaged Property is a
residential cooperative property, each Mortgage Loan prohibits the related
Borrower from mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the Borrower, without the prior written consent
of the mortgagee or the satisfaction of debt service coverage or similar
criteria specified in the Note or Mortgage which would be acceptable to a
reasonably prudent commercial mortgage lender, and, except in connection with
trade debt and equipment financings in the ordinary course of Borrower's
business, from carrying any additional indebtedness, except, in each case, liens
contested in accordance with the terms of the Mortgage Loans or, with respect to
each Mortgage Loan having an original principal balance of less than $4,000,000,
any unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of
the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency or the Secretary of Housing and Urban Development as having
special flood hazards categorized as Zone "A" or Zone "V" and flood insurance is
available, the terms of the Mortgage Loan require the Borrower to maintain flood
insurance, or at such Borrower's failure to do so, authorizes the lender to
maintain such insurance at the cost and expense of the Borrower and such
insurance is in full force and effect in an amount not less than the lesser of
(A) the replacement cost of the material improvements on such Mortgaged
Property, (B) the balance of the Mortgage Loan and (C) the maximum amount of
insurance available under the applicable National Flood Insurance Administration
Program;
Exh. A-13
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or has been substituted in accordance
with applicable law or may be substituted in accordance with applicable law by
the related mortgagee, and except in connection with a trustee's sale after a
default by the related Borrower, no fees are payable to such trustee, and such
fees payable are payable by the Borrower;
(xliii) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any Borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such Borrower's ability to perform under the
related Mortgage Loan;
(xliv) No advance of funds has been made by Seller to the related
Borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to Seller's knowledge, been received
from any person other than, or on behalf of, the related Borrower, for, or on
account of, payments due on the Mortgage Loan;
(xlv) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report or the
Prospectus Supplement with respect to the Crossed Mortgage Loans and Mortgage
Loans secured by multiple, non-contiguous real properties, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (A) payment in full or defeasance of
the related Mortgage Loan, (B) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price at
least 125% of the appraised value of the property to be released or of the
allocated loan amount of such property, (C) releases of unimproved out-parcels
or (D) releases of other portions of the Mortgaged Property which will not have
a material adverse effect on the use or value of the collateral for the related
Mortgage Loan and which were given no value in the appraisal of the Mortgaged
Property or of that portion of the Mortgaged Property used to calculate the
loan-to-value ratio of the Mortgaged Property for underwriting purposes. No
release or partial release of any Mortgaged Property, or any portion thereof,
expressly permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under Treas.
Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (A) the repair or restoration of all or part of
the related Mortgaged Property,
Exh. A-14
with, in the case of all casualty losses or takings in excess of a specified
amount or percentage of the related loan amount that a prudent commercial lender
would deem satisfactory and acceptable, the lender (or a trustee appointed by
it) having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in any case where a provision entitling another
party to hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender) or (B) to the payment of
the outstanding principal balance of such Mortgage Loan together with any
accrued interest thereon;
(xlix) Each UCC Financing Statement, if any, filed with respect to
personal property constituting a part of the related Mortgaged Property and each
assignment, if any, of such UCC Financing Statement to Seller was, and each
assignment, if any, of such UCC Financing Statement in blank which the Trustee
or its designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available to
Seller) is, in suitable form for filing in the filing office in which such UCC
Financing Statement was filed;
(l) To Seller's knowledge, (A) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject property is located, the improvements located on or forming
part of each Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if any
such improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the related Mortgaged Property. With respect to
Mortgage Loans with a Cut-off Date Principal Balance of over $10,000,000, if the
related Mortgaged Property does not so comply, to the extent Seller is aware of
such non-compliance, it has required the related Borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision), the related Mortgaged Property, if acquired by a REMIC in
connection with the default or imminent default of such Mortgage Loan would
constitute "foreclosure property" within the meaning of Code Section 860G(a)(8)
and all Prepayment Premiums and Yield Maintenance Charges with respect to such
Mortgage Loan constitute "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only United States government securities in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the
Exh. A-15
Borrower is required to provide independent certified public accountant's
certification that the collateral is sufficient to make such payments, (D) the
loan may be required to be assumed by a single-purpose entity designated by the
holder of the Mortgage Loan, (E) the Borrower is required to provide an opinion
of counsel that the trustee has a perfected security interest in such collateral
prior to any other claim or interest, (F) the Borrower is required to pay all
Rating Agency fees associated with defeasance (if rating confirmation is a
specific condition precedent thereto) and all other reasonable expenses
associated with defeasance, including, but not limited to, accountant's fees and
opinions of counsel, (G) with respect to any Significant Loan (as defined in the
Pooling and Servicing Agreement), the Borrower is required to provide an opinion
of counsel that such defeasance will not cause any REMIC created under the
Pooling and Servicing Agreement to fail to qualify as a REMIC for federal or
applicable state tax purposes and (H) with respect to any Significant Loan (as
defined in the Pooling and Servicing Agreement), the Borrower must obtain
confirmation from each Rating Agency that the defeasance would not result in
such Rating Agency's withdrawal, downgrade or qualification of the then current
rating of any class of Certificates rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related Borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (A) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that, if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the Borrower;
(lv) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (A) its Mortgage
Rate will increase by no less than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan is an
asset of the Trust Fund; (B) its Anticipated Repayment Date is not less than
seven years following the origination of such Mortgage Loan; (C) no later than
the related Anticipated Repayment Date, if it has not previously done so, the
related Borrower is required to enter into a "lockbox agreement" whereby all
revenue from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the applicable Master Servicer; and (D) any
cash flow from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the extent such
net cash flow is in excess of the Monthly Payment payable therefrom, be net of
budgeted and discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no
Mortgage Loan, and no group of Mortgage Loans made to the same Borrower and to
Borrowers that are Affiliates, accounted for more than 5.0% of the aggregate of
the Cut-off Date Principal Balances of all of the mortgage loans (including the
Mortgage Loans) sold to Depositor by Column Financial, Inc. and KeyBank National
Association pursuant to those certain
Mortgage Loan Purchase Agreements, each
dated as of May 1, 2005, between Depositor and Column Financial, Inc. and
KeyBank National Association, respectively, as of the Cut-off Date;
Exh. A-16
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or acquisition
of each Mortgage Loan, Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to Seller's actual
knowledge, had no interest, direct or indirect, in the Borrower, the Mortgaged
Property or in any loan made on the security of the Mortgaged Property, and
whose compensation was not affected by the approval or disapproval of the
Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
(lix) With respect to the Mortgaged Property related to
the Mortgage Loan identified on the Mortgage Loan Schedule as [[name hospitality
properties]], to Seller's knowledge as of the date of the Mortgage Loan's
origination, all related franchise agreements were in full force and effect and
there were no defaults thereunder.
Exh. A-17
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF
NEW YORK )
) ss.:
COUNTY OF
NEW YORK )
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of KeyBank National
Association ("KEYBANK");
2. that _______________ 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. that _______________, 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
_______________, under date of ______________ (the "NOTE");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. 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;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "DEPOSITOR") and subsequent
assignment by Depositor to the trustee for the benefit of the holders of the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2005-C2 (the "TRUSTEE") (which assignment may,
at the discretion of Depositor, be made directly by _______________ to the
Trustee), _______________ 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
_______________'s failure to deliver said original Note to the Trustee.
Exh. B-1
KEYBANK NATIONAL ASSOCIATION
By:
-----------------------------
Name:
Title:
Sworn to before me this _____
day of __________, 0000
Xxx. B-2
