EXHIBIT 4.4
<PAGE>
EXECUTION VERSION
==============================================================================
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
--------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of February 26, 2004
--------------------------------
==============================================================================
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S>
<C>
<C>
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.............................................................................7
Section 5.
Seller's Conditions to
Closing................................................................................9
Section 6.
Representations and Warranties of
Seller......................................................................9
Section 7.
Obligations of
Seller........................................................................................12
Section 8.
Crossed Mortgage
Loans.......................................................................................15
Section 9.
[Reserved]...................................................................................................16
Section 10.
Representations and Warranties of
Depositor..................................................................16
Section 11.
Survival of Certain Representations, Warranties and
Covenants................................................17
Section 12.
Transaction
Expenses.........................................................................................17
Section 13.
Recording Costs and
Expenses.................................................................................17
Section 14.
Notices......................................................................................................17
Section 15.
Examination of Mortgage
Files................................................................................17
Section 16.
Successors...................................................................................................18
Section 17.
Governing
Law................................................................................................18
Section 18.
Severability.................................................................................................18
Section 19.
Further
Assurances...........................................................................................18
Section 20.
Counterparts.................................................................................................18
Section 21.
Treatment as Security
Agreement..............................................................................18
Section 22.
Recordation of
Agreement.....................................................................................20
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
</TABLE>
-i-
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of February 26, 2004, is made by and
between KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"),
and CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., a Delaware
corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule
of Transaction Terms attached hereto
as Schedule I, which is incorporated herein
by this reference, or,
if not defined therein, in the Pooling and
Servicing Agreement 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
Wells 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 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
<PAGE>
take place at the offices of Sidley Austin
Brown & Wood LLP, 787 Seventh
Avenue, New York, New York 10019, 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" paid by
Depositor shall be equal to $90,136,305.17 (which amount
includes,
without limitation, accrued interest.)
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement,
Depositor shall sell all of its right, title and interest in
and to the
Mortgage Loans to the Trustee for the benefit of the Holders
of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters
shall purchase from Depositor, the Publicly Offered
Certificates
pursuant to the Underwriting Agreement, and Depositor shall
sell to the
Initial Purchaser, and the Initial Purchaser shall purchase
from Depositor,
the Private Certificates pursuant to the Certificate
Purchase
Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates for
sale to the public pursuant to the Prospectus and the
Prospectus
Supplement and the Initial Purchaser will privately place
certain classes
of the Private Certificates pursuant to the Offering
Circular.
Section 3.
Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer,
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 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
-2-
<PAGE>
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 Wells
Fargo Bank,
N.A., as trustee for the registered Holders of Credit Suisse
First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates,
Series 2004-C1, 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 "Wells Fargo Bank, N.A., as
trustee for the
registered Holders of Credit Suisse First Boston Mortgage
Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C1";
(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 "Wells Fargo Bank, N.A., as
trustee for the
registered Holders of Credit Suisse First Boston Mortgage
Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series
2004-C1";
(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 "Wells Fargo Bank,
N.A., as trustee
for the registered Holders of Credit Suisse First Boston
Mortgage
Securities Corp., Commercial Mortgage Pass-Through
Certificates,
Series 2004-C1,"
which assignment may be included as part of an omnibus
assignment
covering other documents relating to the Mortgage Loan
(provided that
such omnibus assignment is effective under applicable
law);
(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
-3-
<PAGE>
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 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 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;
(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;
-4-
<PAGE>
(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 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 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.
-5-
<PAGE>
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 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.
-6-
<PAGE>
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
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:
-7-
<PAGE>
(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;
(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
-8-
<PAGE>
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:
(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, 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.
-9-
<PAGE>
(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 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
-10-
<PAGE>
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, 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.
-11-
<PAGE>
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party
or by which it (or any of its
properties) is bound which breach or
default would materially and adversely
affect the ability of Seller to perform its
obligations under this Agreement.
(xii) The representations and warranties contained in Exhibit A
hereto, subject to the exceptions 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
-12-
<PAGE>
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 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 Servicer or the applicable Special
Servicer, as applicable, under the
Pooling and Servicing Agreement.
-13-
<PAGE>
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
Mortgage File of any required
original letter of credit, provided that
such Defect may be cured by any
substitute letter of credit or cash reserve
on behalf of the related Borrower;
or (f) the absence from the Mortgage File
of the original or a copy of any
required ground lease. 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
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
-14-
<PAGE>
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 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
-15-
<PAGE>
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. [Reserved]
Section 10. Representations and Warranties of Depositor.
Depositor
hereby represents and warrants to Seller as
of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws
of the State of Delaware, with
full corporate power and authority to own
its assets and conduct its business
as it is conducted, and is duly qualified
as a foreign corporation in good
standing in all jurisdictions in which the
ownership or lease of its property
or the conduct of its business requires
such qualification (except where the
failure to qualify would not have a
materially adverse effect on the
consummation of any transactions
contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement
and
the performance of Depositor's obligations
hereunder are within the corporate
power of Depositor and have been duly
authorized by Depositor and neither the
execution and delivery by Depositor of this
Agreement nor the compliance by
Depositor with the provisions hereof, nor
the consummation by Depositor of the
transactions contemplated by this
Agreement, will (i) conflict with or result
in a breach of, or constitute a default
under, the certificate of
incorporation or by-laws of Depositor or,
after giving effect to the consents
or taking of the actions contemplated by
clause (ii) of this paragraph (b),
any of the provisions of any law,
governmental rule, regulation, judgment,
decree or order binding on Depositor or its
properties, or any of the
provisions of any material indenture or
mortgage or any other material
contract or other instrument to which
Depositor is a party or by which it is
bound or result in the creation or
imposition of any lien, charge or
encumbrance upon any of its properties
pursuant to the terms of any such
indenture, mortgage, contract or other
instrument or (ii) require 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
-16-
<PAGE>
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.
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 telecopied and confirmed to it
at Credit Suisse First Boston Mortgage
Securities Corp., 11 Madison Avenue,
5th Floor, New York, New York 10010,
Attention: Edmund Taylor, Telecopy No.:
(212) 743-4756 (with a copy to Tessa
Peters, Telecopy No.: (212) 325-8282), or
such other address or telecopy number as
may be designated by Depositor to
Seller in writing, or (b) if sent to
Seller, will be mailed, delivered or
telecopied and confirmed to it at KeyBank
National Association, 911 Main
Street, Suite 1500, Kansas City, Missouri
64105, Attention: Clay M. Sublett,
Telecopy No.: (816) 221-8848 (with a copy
to Robert C. Bowes, 127 Public
Square, Cleveland, Ohio 44114, Telecopy
No.: (216) 689-5681), or such other
address or telecopy 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.
-17-
<PAGE>
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
February 26, 2004, 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.
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:
-18-
<PAGE>
(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
