EXHIBIT 4.6
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EXECUTION VERSION
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
NCB, FSB
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of February 26, 2004
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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................................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]......................................................15
Section 10. Representations and
Warranties of Depositor.....................15
Section 11. Survival of Certain
Representations, Warranties and Covenants...16
Section 12. Transaction
Expenses............................................16
Section 13. Recording Costs and
Expenses....................................16
Section 14.
Notices.........................................................17
Section 15. Examination of Mortgage
Files...................................17
Section 16.
Successors......................................................17
Section 17. Governing
Law...................................................17
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........................................19
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 February 26, 2004, is made by and
between NCB, FSB, a federal savings bank
chartered by the Office of Thrift
Supervision of the U.S. Department of
Treasury ("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 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
<PAGE>
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 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 the amount that Depositor and
Seller have
mutually agreed upon as the "Net Securitization
Proceeds/Fees"
under the heading "NCB, FSB Share" in the Closing
Statement (which
amount includes, without limitation, accrued interest
and is less
those costs and expenses to be paid by Seller, including
those expenses
to be paid pursuant to Section 12 hereof).
(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
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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
provisions of
the Mortgage, Note or any related security document have
been modified or
the Mortgage Loan has been assumed;
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(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) an original or copy of any subordination agreement,
standstill
agreement or other intercreditor, co-lender or similar
agreement
relating to subordinate indebtedness, including any mezzanine
loan documents
or preferred equity documents;
(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; 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;
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(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; and
(xix) copies of franchise agreements and franchisor comfort
letters, if any,
for hospitality properties and any applicable
transfer/assignment documents.
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 (xi) 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
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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.
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).
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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:
(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.
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(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; provided that (A) such
opinion may
express its reliance as to factual matters on, among other
things specified
in such opinion, the representations and warranties made
herein, and on
certificates or other documents furnished by officers of
Seller and (B)
in rendering the opinions expressed above, such counsel
may limit such
opinions to matters governed by the laws of the State of
New York and the
laws of the United States and shall not be required to
express any
opinion with respect to the registration or qualification of
the Certificates
under any applicable state or federal securities laws;
(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.
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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
federal savings
bank 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.
(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
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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 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
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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.
(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
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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 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
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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.
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
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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 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
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<PAGE>
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 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
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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
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
-16-
<PAGE>
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 1725 I
Street, N.W., Washington, D.C. 20006,
Attention: Steven Brookner, Telecopy No.:
202-336-7800, 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.
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.
-17-
<PAGE>
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;
(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
-18-
<PAGE>
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.
* * *
-19-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Mortgage
Loan Purchase Agreement to be duly executed
and delivered as the date first
above written.
NCB, FSB,
as Seller
By: /s/ Kathleen Luzik
--------------------------------------
Name: Kathleen Luzik
Title: Managing Director
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Jeffrey A. Altabef
--------------------------------------
Name: Jeffrey A. Altabef
Title: Vice President
<PAGE>
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 February 26, 2004, between NCB, FSB
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.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated February 26, 2004, between
Depositor and the Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series
2004-C1.
"Closing" shall have the meaning given that term in Section 2
of
this Agreement.
"Closing Date" means March 12, 2004.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others,
the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized
with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the
applicable
Due Dates for the respective Mortgage Loans
occurring in March 2004.
"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.
"Environmental Report" means the environmental audit report
with
respect to each Mortgaged Property
delivered to Seller in connection with the
related Mortgage, if any.
SCH. I-1
<PAGE>
"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
February 26, 2004, describing certain
classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and
Servicing
Agreement creating the Trust Fund and the
interests therein, dated as of March
11, 2004, among Depositor, the Master
Servicers, the Special Servicers 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
SCH. I-2
<PAGE>
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 November 10, 2003, that is
a
part of Depositor's registration statement
on Form S-3 (File No. 333-97955).
"Prospectus Supplement" means the Prospectus Supplement, dated
February 26, 2004, relating to the Publicly
Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class A-2,
Class A-3, Class A-4, Class B and Class C
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, McDonald
Investments Inc., PNC Capital Markets,
Inc., Lehman Brothers Inc. and WaMu
Capital Corp.
"Underwriting Agreement" means the Underwriting Agreement,
dated
February 26, 2004, between Depositor and
the Underwriters.
SCH. I-3
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE II
MORTGAGE LOAN SCHEDULE
Servicing
Property
# Crossed Group
Name
Address
City
County
-----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
<C>
<C>
<C>
<C>
<C>
39
3
173-175 Tenants Corp.
173-175 Riverside Drive
New York
New York
-----------------------------------------------------------------------------------------------------------------------------------
41
3
500 East 83rd Street Corp.
500 East 83rd Street
New York
New York
-----------------------------------------------------------------------------------------------------------------------------------
42
3
Chatham Park Village Cooperative
737 East 83rd Place
Chicago Cook
-----------------------------------------------------------------------------------------------------------------------------------
Forest
44
3
Forest Hills South Owners, Inc.
112-50 78th
Avenue
Hills
Queens
-----------------------------------------------------------------------------------------------------------------------------------
59
3
Penny Lane Owners Corp.
215 East 24th Street
New York
New York
-----------------------------------------------------------------------------------------------------------------------------------
60
3
196 Owner's Corp.
196 East 75th Street
New York
New York
-----------------------------------------------------------------------------------------------------------------------------------
62
3
605 Apartment Corp.
605 Park Avenue
New York
New York
-----------------------------------------------------------------------------------------------------------------------------------
63
3
Station at Vinings
2810 Paces Ferry Road
Atlanta Cobb
-----------------------------------------------------------------------------------------------------------------------------------
69
3
The Hermitage at
Napeague, Ltd.
2148 Montauk Highway
Amagansett Suffolk
-----------------------------------------------------------------------------------------------------------------------------------
Mount
70
3
Esplanade Gardens Tenants Corp.
531 East Lincoln Avenue
Vernon
Westchester
-----------------------------------------------------------------------------------------------------------------------------------
71
3
Carol House Apartments, Inc.
64-34 102nd Street
Rego Park Queens
-----------------------------------------------------------------------------------------------------------------------------------
83
3
3135 Johnson Tenant Owners Corp.
3135 Johnson Avenue
Riverdale Bronx
-----------------
