EXHIBIT 4.5
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
HYPO REAL ESTATE CAPITAL CORPORATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2005
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<PAGE>
TABLE OF CONTENTS
Section 1.
Transactions on or Prior to the Closing Date...................
Section 2. Closing
Date Actions...........................................
Section 3. Conveyance
of Mortgage Loans...................................
Section 4. Depositor's
Conditions to Closing..............................
Section 5. Seller's
Conditions to Closing.................................
Section 6.
Representations and Warranties of Seller.......................
Section 7. Obligations
of Seller..........................................
Section 8. Crossed
Mortgage Loans.........................................
Section 9.
Representations and Warranties of Depositor....................
Section 10. Survival of Certain Representations, Warranties and
Covenants..
Section 11. Transaction
Expenses...........................................
Section 12. Recording Costs and
Expenses...................................
Section 13.
Notices........................................................
Section 14. Examination of Mortgage
Files..................................
Section 15.
Successors.....................................................
Section 16. Governing
Law..................................................
Section 17.
Severability...................................................
Section 18. Further
Assurances.............................................
Section 19.
Counterparts...................................................
Section 20. Treatment as Security
Agreement................................
Section 21. Recordation of
Agreement.......................................
Schedule I
Schedule of Transaction Terms
Schedule II
Mortgage Loan Schedule
Schedule III Mortgage
Loans Constituting Crossed 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
<PAGE>
CWT DRAFT 12/22/05
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of December 1, 2005, is made by and between HYPO REAL ESTATE
CAPITAL
CORPORATION, a Delaware corporation, ("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 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 such 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, which period may be
extended by thirty
(30) days as provided in the Pooling and Servicing Agreement. In
addition, prior
to such assignment or amendment of a letter of credit, Seller will
take all
necessary steps to enable the 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
Master Servicer
and upon receipt, immediately remitting the proceeds of such draw
(or causing
such proceeds to be remitted) to the 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, the sale of the Publicly Offered Certificates by
Depositor to the
Underwriters pursuant to the Underwriting Agreement and the sale of
the Private
Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate
Purchase Agreement. The closing (the "Closing") shall take place at
the offices
of Cadwalader, Wickersham & Taft LLP, One World Financial
Center, New York, New
York 10281, 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
"Hypo Real Estate Capital 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 11 hereof).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement,
Depositor
shall transfer all of its right, title and interest in, to and
under the
Mortgage Loans to the Trustee (for the benefit of the Holders
of
the
Certificates) in exchange for the issuance of the Certificates to
or
at the
direction of Depositor.
(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. Effective as of the
Closing
Date, subject only to Seller's receipt of the Mortgage Loan
Purchase Price,
Seller does hereby assign, transfer, set over and otherwise convey,
without
recourse, 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 20(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 parties acknowledge that such
assignment,
transfer, setting over and other conveyance shall not be construed
to limit any
obligation of Seller and any servicing rights of KeyCorp Real
Estate Capital
Markets, Inc. under that certain servicing rights purchase
agreement, dated as
of December 1, 2005, between Seller and KeyCorp Real Estate Capital
Markets,
Inc. 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
applicable
Mortgage Loan Originator either in blank or to Seller, and
further
endorsed (at the direction of Depositor given pursuant to this
Agreement)
by Seller, on its face or by allonge attached thereto, without
recourse,
either in blank or to the order of the Trustee in the following
form: "Pay
to the order of 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 2005-C6,
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 applicable 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 applicable
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
2005-C6";
(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
applicable Mortgage Loan Originator of the Mortgage 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 applicable
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
2005-C6", 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 and in recordable
form
under
applicable law);
(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
applicable
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
applicable
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 2005-C6," which assignment may be included as
part of
an omnibus
assignment covering other documents relating to the Mortgage
Loan
(provided that such omnibus assignment is effective under
applicable
law);
(viii) originals or copies of all (A) assumption agreements,
(B)
modifications, (C) written assurance agreements and (D)
substitution
agreements, together with any evidence of recording thereon or in
the form
submitted
for recording, in those instances where the terms or provisions
of the
Mortgage, Note or any related security document have been
modified
or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof
(together
with all endorsements or riders that were issued with or
subsequent
to the issuance of such policy), or if the policy has not yet
been
issued, the original or a copy of a binding written commitment
(which
may be a
pro forma or specimen title insurance policy which has been
accepted
or approved in writing by the related title insurance company,
or
an interim
binder that is "marked up" as binding and countersigned by the
title
company, which in any case is binding on the title insurance
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 CSC/LexisNexis Document
Solutions,
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 applicable
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;
(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
Master
Servicer and copies thereof shall be delivered to the Trustee;
(xvii) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies
thereof;
(xviii) the original or a copy of the ground lease and ground
lease
estoppels,
if any, and of any amendments, modifications or extensions
thereto,
if any;
(xix) the original or copy of any property management
agreement;
(xx) without duplication with clause (xiii) above, a copy of
the
mortgage
note evidencing the related Junior Loan, if any;
(xxi) copies of franchise agreements and franchisor comfort
letters,
if any,
for hospitality properties; and
(xxii) a checklist of the related Mortgage Loan 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)
(relating to
Mortgages), (iv) (relating to Assignments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents)(other than assignments of UCC Financing Statements to be
recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) 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,
the delivery requirements of such last sentence of such first
paragraph of this
Section 3 should be deemed to have been satisfied and such
non-delivered
document or instrument shall be deemed to have been included in the
Mortgage
File; provided that Seller: (i) shall deliver, or cause to be
delivered, to the
Trustee or its designee and the Master Servicer 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 photocopy of the
original thereof
submitted for recording or filing) on the Closing Date; and (ii)
shall deliver,
or cause to be delivered, to the Trustee or its designee (with a
copy thereof to
the Master Servicer) either the original of such non-delivered
document or
instrument, or a photocopy thereof (certified by the appropriate
public
recording or filing office to be a true and complete copy of the
original
thereof submitted for recording or filing), with evidence of
recording or filing
thereon within 120 days of the Closing Date, which period may be
extended up to
two times, in each case for an additional period of 45 days
provided that
Seller, as certified in writing to the Trustee prior to each such
45-day
extension, is in good faith attempting to obtain from the
appropriate county
recorder's office such original or photocopy.
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)
(relating to
Mortgages), (iv) (relating to Assigments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents) (other than assignments of UCC Financing Statements to
be recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) 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 or duplicate original 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 fails, as
to
any Mortgage Loan, to deliver any UCC Financing Statement
assignment with the
filing or recording information of the related UCC Financing
Statement, solely
because such UCC Financing Statement has not been returned to
Seller by the
applicable public filing or recording office where such UCC
Financing Statement
has been delivered for filing or recording, Seller 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 (with a
copy to the Master Servicer) upon its return from the applicable
filing or
recording office, together with the related original UCC Financing
Statement
assignment in a form appropriate for filing or recording.
Notwithstanding the foregoing, Seller may elect, at its sole
cost
and expense, to engage a third-party contractor to prepare or
complete in proper
form for filing or recording any and all of the 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 such Assignments for filing and
recording, as the case
may be, in the applicable public filing and recording offices and
to deliver
such Assignments to the Trustee or its designee (with a copy to the
Master
Servicer) as such 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.
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
Master Servicer (or, if applicable, to a Sub-Servicer (with a copy
to the Master
Servicer) at the direction of the Master Servicer), under the
Pooling and
Servicing Agreement on behalf of the Trustee in trust for the
benefit of the
Certificateholders. Each such Servicer File shall contain all
documents and
records in Seller's possession relating to the Mortgage Loans and
constituting
the related Servicing Files (as defined in the Pooling and
Servicing Agreement).
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 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 Loans in such group of Crossed
Loans, the
inclusion of the original or certified copy of such document or
instrument in
the Mortgage File for any of such Crossed Loans and the inclusion
of a copy of
such original or certified copy in each of the Mortgage Files for
the other
Crossed Loans in such group of Crossed Loans, shall be deemed to
constitute the
inclusion of such original or certified copy, as the case may be,
in the
Mortgage File for each such Crossed 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 Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of
the 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 that constitute the Servicer
File with
respect to the related Mortgage Loan shall immediately vest in
Depositor. All
Monthly Payments, Principal Prepayments and other amounts received
by Seller and
not otherwise belonging to Seller pursuant to this Agreement shall
be sent by
Seller within three (3) Business Days after Seller's receipt
thereof to the
Master Servicer via wire transfer for deposit by the Master
Servicer into the
Collection Account.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Depositor,
as provided
herein, as a sale of the Mortgage Loans to Depositor in exchange
for the
consideration specified in Section 2 hereof. In connection with the
foregoing,
Seller shall cause all of its financial and accounting records to
reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at
all times
following the Closing Date cause all of its records and financial
statements and
any relevant consolidated financial statements of any direct or
indirect parent
to clearly reflect that the Mortgage Loans have been transferred to
Depositor
and are no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with
Depositor's
ownership (or the ownership by any of Depositor's assignees) of the
Mortgage
Loans. Except for actions that are the express responsibility of
another party
hereunder or under the Pooling and Servicing Agreement, and further
except for
actions that Seller is expressly permitted to complete subsequent
to the Closing
Date, Seller shall, on or before the Closing Date, take all actions
required
under applicable law to effectuate the transfer of the Mortgage
Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations
of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan
Purchase
Price at the Closing Date under the terms of this Agreement are
subject to the
satisfaction of each of the following conditions at or before the
Closing:
(a) Each of the obligations of Seller required to be performed by
it
on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; all of the
representations and warranties of Seller under this Agreement
(subject to the
exceptions set forth in the Exception Report) shall be true and
correct in all
material respects as of the Closing Date; no event shall have
occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage
Files which,
with notice or the passage of time, would constitute a material
default under
this Agreement; and Depositor shall have received certificates to
the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in
escrow, all of
the following closing documents, in such forms as are agreed upon
and reasonably
acceptable to Depositor and Seller, duly executed by all
signatories other than
Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage Files, subject to the provisos of Section 1 of
this
Agreement,
which shall have been delivered to and held by the Trustee or
its
designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations
and
warranties
set forth in Section 6 (subject to the exceptions set forth in
the
Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, which may
include
in-house
counsel dated the Closing Date, covering various corporate
matters
and such other matters as shall be reasonably required by
Depositor;
(v) such other certificates of Seller's officers or others and
such
other
documents to evidence fulfillment of the conditions set forth
in
this
Agreement as Depositor or its counsel may reasonably request;
and
(vi) all other information, documents, certificates, or letters
with
respect to
the Mortgage Loans or Seller and its Affiliates as are
reasonably
requested by Depositor in order for Depositor to perform any of
it
obligations or satisfy any of the conditions on its part to be
performed
or satisfied pursuant to any sale of Mortgage Loans by
Depositor
as
contemplated herein.
(c) Seller shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before
the
Closing Date, five limited powers of attorney in favor of the
Trustee and
Special Servicer empowering the Trustee and, in the event of the
failure or
incapacity of the Trustee, the Special Servicer, to record, at the
expense of
Seller, any Mortgage Loan Documents required to be recorded and any
intervening
assignments with evidence of recording thereon that are required to
be included
in the Mortgage Files. Seller shall reasonably cooperate with the
Trustee and
the Special Servicer in connection with any additional powers or
revisions
thereto that are requested by such parties.
Section 5. Seller's Conditions to Closing. The obligations of
Seller
under this Agreement shall be subject to the satisfaction, on the
Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed
by
it on or prior to the Closing Date pursuant to the terms of this
Agreement shall
have been duly performed and complied with in all material
respects; and all of
the representations and warranties of Depositor under this
Agreement shall be
true and correct in all material respects as of the Closing Date;
and no event
shall have occurred with respect to Depositor which, with notice or
the passage
of time, would constitute a material default under this Agreement,
and Seller
shall have received certificates to that effect signed by
authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably
acceptable to Seller
and Depositor, duly executed by all signatories other than Seller,
as required
pursuant to the respective terms thereof:
(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.
Seller represents and warrants to Depositor as of the date
hereof,
as follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware.
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 material 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 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 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.
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 any Certificateholder, the Master Servicer, the Special
Servicer
or the Trustee discovers or 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(xii) or
as of the
Closing Date pursuant to Section 4(b)(iii) (in any such case, a
"Breach"), or
discovers 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" described in the immediately following paragraph) in the
related
Mortgage File), such party shall give notice to the Master
Servicer, the Special
Servicer, the Trustee and the Rating Agencies. If the Master
Servicer or the
Special Servicer determines that such Breach or Defect materially
and adversely
affects the value of any Mortgage Loan or REO Loan 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), it
shall give
prompt written notice of such Breach or Defect to the Depositor,
the Trustee,
the Master Servicer, the Special Servicer and the Seller and shall
request that
the Seller not later than the earlier of 90 days from the receipt
by the Seller
of such notice or discovery by the Seller of such Breach or Defect
(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 Master Servicer for deposit into the
Collection
Account any Substitution Shortfall Amount (as defined in the
Pooling and
Servicing Agreement) in connection therewith; provided, however,
that Seller
shall have an additional 90 days to cure such Material Breach or
Material Defect
if all of the following conditions are satisfied: (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
Master Servicer, the Special Servicer and the Trustee an Officer's
Certificate
that describes the reasons that the cure was not effected within
the Initial
Resolution Period and the actions that it proposes to take to
effect the cure
and that states that it anticipates the cure will be effected
within the
additional 90-day period. If there exists a Breach of any
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 to the Collection Account) the reasonable amount of any such
costs and
expenses incurred by the Master Servicer, the 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, replace
such Mortgage
Loan and pay any applicable Substitution Shortfall Amount 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
Due Date in 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 Master Servicer
or the
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 each such
Qualified
Substitute Mortgage Loan on or prior to the Due Date in 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 Master
Servicer or the 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 Master Servicer or the 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)
(relating to
evidence of title insurance) 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; (e) the absence from the Mortgage File (or the
Servicer File) of
any required original letter of credit (as required in the provisos
of Section 1
hereof), provided that such Defect may be cured by any substitute
letter of
credit or cash reserve on behalf of the related Borrower; (f) the
absence from
the Mortgage File of the original or a copy of any required ground
lease; or (g)
solely in the case of a Mortgage Loan secured by a Mortgaged
Property operated
as a hospitality property, the absence from the Mortgage File of
the related
franchise agreement and/or franchisor comfort letter. 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.
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)
with respect to, 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 Loan that is a part of
a Crossed
Group (as defined below) and (iii) the applicable Breach or Defect
does not
otherwise constitute a Breach or Defect, as the case may be, as to
any other
Crossed Loan in such Crossed 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 Loan
in the
Crossed Group for purposes of the above provisions, and Seller will
be required
to repurchase or substitute for such other Crossed Loan(s) in the
related
Crossed Group in accordance with the provisions of this Section 7
unless such
other Crossed Loans satisfy the Crossed 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 Loans satisfy the Crossed Loan Repurchase Criteria, Seller
may elect
either to repurchase or substitute for only the affected Crossed
Loan as to
which the related Breach or Defect exists or to repurchase or
substitute for all
of the Crossed Loans in the related Crossed Group. Seller shall be
responsible
for the cost of any Appraisal required to be obtained by the Master
Servicer to
determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long
as the scope and cost of such Appraisal have been approved by
Seller (such
approval not to be unreasonably withheld). For purposes of this
paragraph, a
"Crossed Group" is any group of Mortgage Loans identified as a
Crossed 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 Master
Servicer,
the Special Servicer, the Trustee or the Trust Fund in connection
therewith,
including any unreimbursed advances and interest thereon made with
respect to
the Mortgaged Property that is being released, and (iii) such cure
by release of
such Mortgaged Property is effected within the time periods
specified for a 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 t
