EXHIBIT 10.1
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 1, 2006
-----------------------------------
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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. Rating Agency
Fees; Costs and Expenses Associated
with a
Defeasance................................................
Section 10. Representations and
Warranties of Depositor......................
Section 11. Survival of Certain
Representations, Warranties
and
Covenants....................................................
Section 12. Transaction
Expenses.............................................
Section 13. Recording Costs and
Expenses.....................................
Section 14.
Notices..........................................................
Section 15. Notice of Exchange Act
Reportable Events.........................
Section 16. Examination of
Mortgage Files....................................
Section 17.
Successors.......................................................
Section 18. Governing
Law....................................................
Section 19.
Severability.....................................................
Section 20. Further
Assurances...............................................
Section 21.
Counterparts.....................................................
Section 22. Treatment as Security
Agreement..................................
Schedule I Schedule of
Transaction Terms
Schedule II Mortgage Loan Schedule
for Column Loans
Schedule III
Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with
Lost Mortgage Notes
Schedule V Exceptions with
Respect to Seller's Representations
and Warranties
Exhibit A
Representations and Warranties of Seller Regarding the
Mortgage Loans
Exhibit B Form of
Lost Mortgage Note Affidavit
<PAGE>
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated
as
of September 1, 2006, is made by and between COLUMN FINANCIAL,
INC., 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 or elsewhere in this Agreement, in the Pooling and
Servicing
Agreement.
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 trust receipt, pursuant to an arrangement
between Seller
and the Trustee; provided, however, that item (p) 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.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously
with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of
the
Certificates and the sale of (a) the Publicly Offered Certificates
by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b)
the Private
Certificates by Depositor to the Initial Purchaser pursuant to the
Certificate
Purchase Agreement. The closing (the "Closing") shall take place at
the offices
of Cadwalader, 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 (as defined herein). 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 (or, by such other method
as
shall be mutually acceptable to Depositor and Seller). The
"Mortgage Loan
Purchase Price" paid by Depositor shall be equal to the amount that
the
Depositor and the Seller have mutually agreed upon as the Seller's
share
of
the net securitization proceeds from the sale of the Publicly
Offered
Certificates and the Private Certificates as set forth in the
Closing
Statement (which amount includes, without limitation, accrued
interest).
(ii)
Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to
the
Mortgage Loans to the Trustee for the benefit of the Holders of
the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters shall purchase from Depositor, the Publicly
Offered
Certificates pursuant to the Underwriting Agreement, and Depositor
shall
sell
to the Initial Purchaser, and the Initial Purchaser shall
purchase
from
Depositor, the Private Certificates pursuant to the Certificate
Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates
for
sale to the public pursuant to the Prospectus and the
Prospectus
Supplement and the Initial Purchaser will privately place certain
classes
of
the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date,
Seller shall sell, convey, assign and transfer, subject to any
related servicing
rights of any applicable Master Servicer under, and/or any
applicable Primary
Servicer contemplated by, the Pooling and Servicing Agreement,
without recourse
except as provided herein, to Depositor, free and clear of any
liens, claims or
other encumbrances, all of Seller's right, title and interest in,
to and under:
(i) each of the Mortgage Loans identified on the Mortgage Loan
Schedule, and
(ii) all property of Seller described in Section 21(b) of this
Agreement,
including, without limitation, (A) all scheduled payments of
interest and
principal due on or with respect to the Mortgage Loans after the
Cut-off Date
and (B) all other payments of interest, principal or yield
maintenance charges
received on or with respect to the Mortgage Loans after the Cut-off
Date, other
than any such payments of interest or principal or yield
maintenance charges
that were due on or prior to the Cut-off Date. The Mortgage File
for each
Mortgage Loan shall contain the following documents on a collective
basis:
(a) 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, assignments
or allonges
showing a complete chain of endorsement or assignment from the
Mortgage Loan
Originator either in blank or to Seller, and further endorsed (at
the direction
of Depositor given pursuant to this Agreement) by Seller, on its
face or by
allonge attached thereto, without recourse, either in blank or to
the order of
the Trustee in the following form: "Pay to the order of 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 2006-C4,
without recourse, representation or warranty, express or
implied";
(b) a duplicate original Mortgage or a counterpart thereof or,
if
such Mortgage has been returned by the related recording office,
(A) an
original, (B) a certified copy or (C) a copy thereof from the
applicable
recording office, and originals or counterparts (or originals or
copies of
certified copies from the applicable recording office) of any
intervening
assignments thereof from the Mortgage Loan Originator to Seller, in
each case in
the form submitted for recording or, if recorded, with evidence of
recording
indicated thereon;
(c) 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 2006-C4";
(d) an original, counterpart or copy of any related Assignment
of
Leases (if such item is a document separate from the Mortgage), and
the
originals, counterparts or copies of any intervening assignments
thereof from
the Mortgage Loan Originator of the Loan to Seller, in each case in
the form
submitted for recording or, if recorded, with evidence of recording
thereon;
(e) an original assignment of any related Assignment of Leases
(if
such item is a document separate from the Mortgage and to the
extent not already
assigned pursuant to clause (c) above), in recordable form (except
for any
missing recording information and, if applicable, completion of the
name of the
assignee), from 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 2006-C4";
(f) an original or true and complete copy of any related
Security
Agreement (if such item is a document separate from the Mortgage),
and the
originals or copies of any intervening assignments thereof from the
Mortgage
Loan Originator to Seller;
(g) an original assignment of any related Security Agreement
(if
such item is a document separate from the Mortgage and to the
extent not already
assigned pursuant to clause (c) above), from 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 2006-C4,"
which assignment
may be included as part of an omnibus assignment covering other
documents
relating to the Mortgage Loan (provided that such omnibus
assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D)
substitution agreements,
together with any evidence of recording thereon or in the form
submitted for
recording, in those instances where the terms or provisions of the
Mortgage,
Note or any related security document have been modified or the
Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy
thereof
(together with all endorsements or riders that were issued with or
subsequent to
the issuance of such policy), or if the policy has not yet been
issued, the
original or a copy of a binding written commitment (which may be a
pro forma or
specimen title insurance policy which has been accepted or approved
in writing
by the related title insurance company) or interim binder that is
marked as
binding and countersigned by the title company, insuring the
priority of the
Mortgage as a first lien on the related Mortgaged Property,
relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(k) 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;
(l) the original or copy of the power of attorney (with
evidence
of recording thereon) granted by the Borrower if the Mortgage, Note
or other
document or instrument referred to above was not signed by the
Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination
agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement
relating to such other debt, if any, including any mezzanine loan
documents or
preferred equity documents, and a copy of the promissory note
relating to such
other debt (if such other debt is also secured by the related
Mortgage);
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control
agreement;
(o) an original or copy of any related Loan Agreement (if
separate
from the related Mortgage), and an original or copy of any related
Lock-Box
Agreement or Cash Collateral Account Agreement (if separate from
the related
Mortgage and Loan Agreement);
(p) 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;
(q) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies
thereof;
(r) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and any originals or
copies of
amendments, modifications or extensions thereto, if any;
(s) the original or copy of any property management agreement;
(t) copies of franchise agreements and franchisor comfort
letters,
if any, for hospitality properties and any applicable
transfer/assignment
documents;
(u) a checklist of the documents included in the subject
Mortgage
File;
(v) if applicable, the original or a counterpart of any
post-closing agreement relating to any modification, waiver or
amendment of any
term of any Mortgage Loan (including fees charged the Borrower)
required to be
added to the Mortgage File pursuant to Section 3.20(l) of the
Pooling and
Servicing Agreement.
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
(b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be
recorded or filed
in accordance with the transfer contemplated by this Agreement),
(1) and (n)
(other than assignments of UCC Financing Statements to be recorded
or filed in
accordance with the transfer contemplated by this Agreement) above
and with
evidence of recording or filing thereon on the Closing Date, solely
because of a
delay caused by the public recording or filing office where such
document or
instrument has been delivered for recordation or filing, then the
Seller: (i)
shall deliver, or cause to be delivered, to the Trustee 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 (with a copy to the applicable Master
Servicer),
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). 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
(b), (d), (h),
(k) (other than assignments of UCC Financing Statements to be
recorded or filed
in accordance with the transfer contemplated by this Agreement),
(1) and (n)
(other than assignments of UCC Financing Statements to be recorded
or filed in
accordance with the transfer contemplated by this Agreement) above
with evidence
of recording or filing thereon for any other reason, including
without
limitation, that such non-delivered document 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 (with a copy to the applicable Master Servicer) 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 and shall
not be in breach of its obligations with respect to such delivery,
provided that
Seller promptly forwards such UCC Financing Statement to the
Trustee (with a
copy to the applicable Master Servicer) 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 (c),
(e), (k), and
(n) above (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
(with a copy
to the applicable Master Servicer) 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, rent rolls, leases,
environmental and
engineering reports, third-party underwriting reports, appraisals,
surveys,
legal opinions, estoppels, financial statements, operating
statements and any
other information provided by the respective Borrower from time to
time, but
excluding any draft documents, attorney/client communications,
which are
privileged or constitute legal or other due diligence analyses, and
documents
prepared by Seller or any of its Affiliates solely for internal
communication,
credit underwriting or due diligence analyses (other than the
underwriting
information contained in the related underwriting memorandum or
asset summary
report prepared by the Seller in connection with the preparation of
Exhibit A-1
to the Prospectus Supplement)) that are not required to be a part
of a Mortgage
File in accordance with the definition thereof, together with
copies of all
instruments and documents which are required to be a part of the
related
Mortgage File in accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of
the Closing
Date, the Seller (within 30 days after the Closing Date) shall
cause to be
prepared, executed and delivered to the issuer of each such letter
of credit
such notices, assignments and acknowledgements as are required
under such letter
of credit to assign, without recourse, to, and vest in, the Trustee
(in care of
the applicable Master Servicer) (whether by actual assignment or by
amendment of
the letter of credit) the Seller's rights as the beneficiary
thereof and drawing
party thereunder. The designated beneficiary under each letter of
credit
referred to in the preceding sentence shall be the Trustee (in care
of the
applicable Master Servicer).
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) for deposit into
Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off
Date, all
other payments of principal due and collected after the Cut-off
Date, and all
payments of interest on the Mortgage Loans, minus that portion of
any such
payment which is allocable to the period on or prior to the Cut-off
Date. All
scheduled payments of principal due on or before the Cut-off Date
and collected
after the Cut-off Date, together with the accompanying interest
payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage
Loan and the
contents of the related Mortgage File shall be vested in Depositor
and the
ownership of all records and documents with respect to the related
Mortgage Loan
prepared by or which come into the possession of Seller as seller
of the
Mortgage Loans hereunder, exclusive in each case of records and
documents that
are not required to be delivered hereunder by Seller, shall
immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other
amounts
received by Seller and not otherwise belonging to Seller pursuant
to this
Agreement shall be sent by Seller within three (3) Business Days
after Seller's
receipt thereof to the applicable Master Servicer via wire transfer
for deposit
by the applicable Master Servicer into the Collection Account.
Upon the sale of Certificates representing at least 10% of the
fair value of all the Certificates to unaffiliated third parties,
Seller shall,
under generally accepted accounting principles ("GAAP"), report its
transfer of
the Mortgage Loans to 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, upon sale of Certificates
representing
at least 10% of the fair value of all the Certificates to
unaffiliated third
parties, Seller shall cause all of its financial and accounting
records to
reflect such transfer as a sale (as opposed to a secured loan).
Regardless of
its treatment of the transfer of the Mortgage Loans to the
Depositor under GAAP,
Seller shall at all times following the Closing Date cause all of
its records
and financial statements and any relevant consolidated financial
statements of
any direct or indirect parent to clearly reflect that the Mortgage
Loans have
been transferred to 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(a) (subject to the exceptions set
forth
in
the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing
Date, covering various corporate matters and such other matters as
shall
be
reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and
such
other documents to evidence fulfillment of the conditions set
forth
in
this Agreement as Depositor or its counsel may reasonably request;
and
(vi) all other information, documents, certificates, or letters
with
respect to the Mortgage Loans or Seller and its Affiliates as
are
reasonably requested by Depositor in order for Depositor to perform
any
of
it obligations or satisfy any of the conditions on its part to
be
performed or satisfied pursuant to any sale of Mortgage Loans
by
Depositor as contemplated herein.
(c) Seller shall have performed or complied with all other
terms
and conditions of this Agreement which it is required to perform or
comply with
at or before the Closing and shall have the ability to perform or
comply with
all duties, obligations, provisions and terms which it is required
to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before
the
Closing Date, five (5) 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 or the
applicable Special Servicer after the Closing Date, the Seller
shall deliver to
the Trustee or the applicable Special Servicer, as applicable, the
powers of
attorney described in the prior sentence in form and substance
reasonably
acceptable to the requesting party.
(e) The Seller shall have paid or caused to be paid upfront all
the annual fees of each Rating Agency allocable to the Mortgage
Loans.
Section 5. Seller's Conditions to Closing. The obligations of
Seller under this Agreement shall be subject to the satisfaction,
on the Closing
Date, of the following conditions:
(a) Each of the obligations of Depositor required to be
performed
by it on or prior to the Closing Date pursuant to the terms of this
Agreement,
including, without limitation, payment of the Mortgage Loan
Purchase Price,
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
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 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
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
owned by
Seller.
(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 owned by it constitutes at least fair
consideration and reasonably equivalent value for the Mortgage
Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to
believe, that it cannot perform each and every covenant of
Seller contained in this Agreement (or any agreement or document
executed
and
delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to
Seller's knowledge, threatened in writing against Seller which
are
reasonably likely to draw into question the validity of this
Agreement
(or
any agreement or document executed and delivered by Seller in
connection herewith) or which, either in any one instance or in
the
aggregate, are reasonably likely to materially 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.
(xiii) The information set forth in any Disclosure Information
(as
defined in the Column Financial, Inc. Indemnification Agreement),
as
last
forwarded to each prospective investor at or prior to the date
on
which a contract for sale was entered into with such
prospective
investor, (i) does not contain any untrue statement of a material
fact or
omit
to state any material fact necessary to make the statements
therein,
in
light of the circumstances under which they were made, not
misleading
and
(ii) complies with the requirements of and contains all of the
applicable information required by Regulation AB (as defined in
the
Column Financial, Inc. Indemnification Agreement); but only to the
extent
that
(i) such information regards the Mortgage Loans and is contained
in
the
Loan Detail (as defined in the Column Financial, Inc.
Indemnification
Agreement) or, to the extent consistent therewith, the Diskette
(as
defined in the Column Financial, Inc. Indemnification Agreement) or
(ii)
such
information regarding the Seller or the Mortgage Loans was
contained
in
the Confidential Offering Circular or the Prospectus Supplement
under
the
headings "Summary of Prospectus Supplement--Relevant
Parties/Entities," "--Sponsors and Mortgage Loan Sellers,"
"--Originators," "--The Underlying Mortgage Loans," "--Source of
the
Underlying Mortgage Loans," "Risk Factors," "Description of the
Sponsors
and
Mortgage Loan Sellers" "Description of the Underlying Mortgage
Loans"
and
"--Significant Mortgage Loans" and such information does not
represent an incorrect restatement or an incorrect aggregation of
correct
information regarding the Mortgage Loans contained in the Loan
Detail.
(b) Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Trustee as
the holder of
the Mortgage Loan to be replaced, with respect to any replacement
mortgage loan
(a "Replacement Mortgage Loan") that is substituted for a Mortgage
Loan affected
by a Material Defect or a Material Breach, pursuant to Section 7 of
this
Agreement, each of the representations and warranties set forth in
Exhibit A
hereto (references therein to "Closing Date" being deemed to be
references to
the "date of substitution" and references therein to "Cut-off Date"
being deemed
to be references to the "most recent due date for the subject
Replacement
Mortgage Loan on or before the date of substitution"). From and
after the date
of substitution, each Replacement Mortgage Loan, if any, shall be
deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. Obligations of Seller. Each of the representations
and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and
shall
continue in full force and effect, notwithstanding any restrictive
or qualified
endorsement on the Notes and notwithstanding subsequent termination
of this
Agreement or the Pooling and Servicing Agreement. The
representations and
warranties contained in or required to be made by Seller pursuant
to Section 6
of this Agreement shall not be impaired by any review or
examination of the
Mortgage Files or other documents evidencing or relating to the
Mortgage Loans
or any failure on the part of Depositor to review or examine such
documents and
shall inure to the benefit of the initial transferee of the
Mortgage Loans from
Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, but shall
not inure to the benefit of any subsequent transferee
thereafter.
If Seller receives notice of a breach of any of the
representations or warranties made by Seller with respect to the
Mortgage Loans,
as of the date hereof in Section 6(a)(xii) or as of the Closing
Date pursuant to
Section 4(b)(iii) (in either case, subject to the exceptions to
such
representations and warranties set forth in the Exception Report)
or with
respect to any Replacement Mortgage Loan, as of the date of
substitution
pursuant to Section 6(b) (in any such case, a "Breach"), or
receives notice that
(a) any document required to be included in the Mortgage File
related to any
Mortgage Loan is not in the Trustee's (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 the related
Mortgage Loan or
any successor REO Loan or the interests of any class of
Certificateholders (any
Breach or Defect that materially and adversely affects the value of
the related
Mortgage Loan or the interests of any class of Certificateholders,
a "Material
Breach" or a "Material Defect," respectively), then the 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 Material Breach or
Material Defect,
as the case may be, in all material respects; (ii) repurchase the
affected
Mortgage Loan at the applicable Purchase Price (as defined in the
Pooling and
Servicing Agreement); or (iii) substitute, in accordance with the
Pooling and
Servicing Agreement, one or more Qualified Substitute Mortgage
Loans (as defined
in the Pooling and Servicing Agreement) for such affected Mortgage
Loan
(provided that in no event shall any substitution occur later than
the second
anniversary of the Closing Date) and pay the applicable Master
Servicer for
deposit into the applicable Collection Account any Substitution
Shortfall Amount
(as defined in the Pooling and Servicing Agreement) in connection
therewith;
provided, however, that if (i) such Material Breach or Material
Defect is
capable of being cured but not within the Initial Resolution
Period, (ii) such
Material Breach or Material Defect does not cause the related
Mortgage Loan not
to be a "qualified mortgage" (within the meaning of Section
860G(a)(3) of the
Code), (iii) Seller has commenced and is diligently proceeding with
the cure of
such Material Breach or Material Defect within the Initial
Resolution Period and
(iv) Seller has delivered to the Rating Agencies, the applicable
Master
Servicer, the applicable Special Servicer and the Trustee an
Officer's
Certificate that describes the reasons that the cure was not
effected within the
Initial Resolution Period and the actions that it proposes to take
to effect the
cure and that states that it anticipates the cure will be effected
within the
additional 90-day period, then Seller shall have an additional 90
days to cure
such Material Defect or Material Breach. If any Breach pertains to
a
representation or warranty that the related Mortgage Loan Documents
or any
particular Mortgage Loan Document requires the related Borrower to
bear the
costs and expenses associated with any particular action or matter
under such
Mortgage Loan Document(s), then Seller shall cure such Breach
within the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer
of immediately
available funds) the reasonable amount of any such costs and
expenses incurred
by the applicable Master Servicer, the applicable Special Servicer,
the Trustee
or the Trust Fund that are the basis of such Breach and have not
been reimbursed
by the related Borrower; provided, however, that in the event any
such costs and
expenses exceed $10,000, Seller shall have the option to either
repurchase the
related Mortgage Loan at the applicable Purchase Price, 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. Provided such payment is made, the second preceding
sentence describes
the sole remedy available to the Certificateholders and the Trustee
on their
behalf regarding any such Breach, and Seller shall not be obligated
to
repurchase, substitute or otherwise cure such Breach under any
circumstances.
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 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
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 (i) of the
definition of
Mortgage File in Section 3; (d) the absence from the Mortgage File
of any
intervening assignments required to create an effective assignment
to the
Trustee on behalf of the Trust, unless there is included in the
Mortgage File a
certified copy of the intervening assignment as recorded or as sent
for
recordation, together with a certificate stating that the original
intervening
assignment was sent for recordation, or a copy of the intervening
assignment and
the related recording information; or (e) the absence from the
Mortgage File of
any required original letter of credit (unless such original has
been delivered
to the applicable Master Servicer and copy thereof is part of the
Mortgage
File), 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.
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 the Crossed Mortgage Loan Repurchase
Criteria would be
satisfied if Seller were to repurchase or substitute for only the
affected
Crossed Mortgage Loans as to which a Material Breach or Material
Defect had
occurred without regard to this paragraph, and in the case of
either such
repurchase or substitution, all of the other requirements set forth
in the
Pooling and Servicing Agreement applicable to a repurchase or
substitution, as
the case may be, would be so satisfied. In the event that 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 entire Mortgage Loan
if the
affected Mortgaged Property may, pursuant to the partial release
provisions in
the related Mortgage Loan Documents, be released and the Mortgaged
Property
remaining after such release satisfies the requirements, if any,
set forth in
the Mortgage Loan Documents and (i) Seller provides an opinion of
counsel to the
effect that such partial release would not cause an Adverse REMIC
Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii)
Seller pays (or
causes to be paid) the applicable release price required under the
Mortgage Loan
Documents and, to the extent not reimbursable out of the release
price pursuant
to the related Mortgage Loan Documents, any additional amounts
necessary to
cover all reasonable out-of-pocket expenses reasonably incurred by
the
applicable Master Servicer, the applicable Special Servicer, the
Trustee or the
Trust Fund in connection therewith, including any unreimbursed
advances and
interest thereon made with respect to the Mortgaged Property that
is being
released and (iii) such cure by release of such Mortgaged Property
is effected
within the time periods specified for cure of a Material Breach or
Material
Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to
Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee,
the Trustee
as its assignee, by wire transfer of immediately available funds to
the account
designated by Depositor or the Trustee, as the case may be, and
Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in
the case of a
substitution, the Mortgage File(s) for the related Qualified
Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and
Servicer File
(and all other documents pertaining to such Mortgage Loan possessed
by the
Depositor or the Trustee, as applicable, or on its behalf, but
excluding any
draft documents, attorney/client privileged communications and
documents
prepared by the Depositor or the Trustee (or by the Master Servicer
or the
Special Servicer on behalf of the Trust), as applicable, or any of
its
Affiliates solely for internal communication) or cause them to be
released, to
Seller and shall execute and deliver such instruments of transfer,
endorsement
or assignment as shall be necessary to vest in Seller the legal and
beneficial
ownership of such Mortgage Loan (including any property acquired in
respect
thereof or proceeds of any insurance policy with respect thereto)
and the
related Mortgage Loan Documents and shall deliver to Seller any
escrow payments
and reserve funds held by it, or on its behalf, with respect to
such repurchased
or replaced Mortgage Loan.
It is understood and agreed that the obligations of 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. Rating Agency Fees; Costs and Expenses Associated
with
a Defeasance. The Seller shall pay all Rating Agency fees
associated with an
assumption of a Mortgage Loan to the extent such fees have not been
paid by the
related Borrower and such Borrower is not required to pay them
under the terms
of the related Mortgage Loan Documents in effect on or before the
Closing Date,
the payment of which fees shall constitute the sole remedy of any
breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto
unless the
Seller elects to repurchase or substitute for such Mortgage Loan in
accordance
with the second paragraph of Section 7. The Seller shall pay all
reasonable
costs and expenses associated with a defeasance of a Mortgage Loan
to the extent
such costs and expenses have not been paid by the related Borrower
and such
Borrower is not required to pay them under the terms of the related
Mortgage
Loan Documents in effect on or before the Closing Date, the payment
of which
fees shall constitute the sole remedy of any breach by a Seller
of
representation (liv)(F) set forth on Exhibit A hereto unless the
Seller elects
to repurchase or substitute for such Mortgage Loan in accordance
with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor.
Depositor
hereby represents and warrants to Seller as of the date hereof, as
follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with full
corporate power and authority to own its assets and conduct its
business as it
is conducted, and is duly qualified as a foreign corporation in
good standing in
all jurisdictions in which the ownership or lease of its property
or the conduct
of its business requires such qualification (except where the
failure to qualify
would not have a materially adverse effect on the consummation of
any
transactions contemplated by this Agreement).
(b) The
execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the
corporate
power of Depositor and have been duly authorized by Depositor and
neither the
execution and delivery by Depositor of this Agreement nor the
compliance by
Depositor with the provisions hereof, nor the consummation by
Depositor of the
transactions contemplated by this Agreement, will (i) conflict with
or result in
a breach of, or constitute a default under, the certificate of
incorporation or
by-laws of Depositor or, after giving effect to the consents or
taking of the
actions contemplated by clause (ii) of this paragraph (b), any of
the provisions
of any law, governmental rule, regulation, judgment, decree or
order binding on
Depositor or its properties, or any of the provisions of any
material indenture
or mortgage or any other material contract or other instrument to
which
Depositor is a party or by which it is bound or result in the
creation or
imposition of any lien, charge or encumbrance upon any of its
properties
pursuant to the terms of any such indenture, mortgage, contract or
other
instrument or (ii) require any consent of, notice to, or filing
with any person,
entity or governmental body, which has not been obtained or made by
Depositor,
except where, in any of the instances contemplated by clause (i)
above or this
clause (ii), the failure to do so will not have a material and
adverse effect on
the consummation of any transactions contemplated by this
Agreement.
(c) This Agreement has been duly executed and delivered by
Depositor and this Agreement constitutes a legal, valid and binding
instrument,
enforceable against Depositor in accordance with its terms,
subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency,
moratorium and other laws affecting the rights of creditors
generally and to
general principles of equity and the discretion of the court
(regardless of
whether enforcement of such remedies is considered in a proceeding
in equity or
at law) and, as to rights of indemnification hereunder, subject to
limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit
or
proceeding by or before any court, regulatory authority or
governmental agency
or body pending or, to the knowledge of Depositor, threatened
against Depositor
the outcome of which could be reasonably expected to materially and
adversely
affect the consummation of any transactions contemplated by this
Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth
in or made
pursuant to this Agreement, and the respective obligations of the
parties hereto
under Sections 7 and 13 of this Agreement, will remain in full
force and effect,
regardless of any investigation or statement as to the result
thereof made by or
on behalf of any party and will survive payment for the various
transfers
referred to herein and delivery of the Certificates or termination
of this
Agreement.
Section 12. Transaction Expenses. In connection with the
Closing
(and unless otherwise expressly provided herein, including, without
limitation,
in Section 13 of this Agreement), Seller shall be responsible for
the fees and
expenses of its own counsel, and Depositor and Seller agree to pay
the other
transaction expenses incurred in connection with the transactions
herein
contemplated as set forth in the Closing Statement (or, if not
covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to
reimburse the Trustee or its designee all recording and filing fees
and expenses
incurred by the Trustee or its designee in connection with the
recording or
filing of the Mortgage Loan Documents listed in Section 3 of this
Agreement,
including Assignments. In the event Seller elects to engage a
third-party
contractor to prepare, complete, file and record Assignments with
respect to
Mortgage Loans as provided in Section 3 of this Agreement, Seller
shall contract
directly with such contractor and shall be responsible for such
contractor's
compensation and reimbursement of recording and filing fees and
other
reimbursable expenses pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and,
(a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed
to it at
Credit Suisse First Boston Mortgage Securities Corp., 11 Madison
Avenue, 5th
Floor, New York, New York 10010, Attention: Edmund Taylor, Telecopy
No.: (212)
743-4756 (with a copy to Casey McCutcheon, Esq., Legal &
Compliance Department,
Telecopy No.: (917) 326-8433), 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 3414
Peachtree Road,
N.E., Suite 1140, Atlanta, Georgia 30326, Attention: Robert Barnes,
Telecopy
No.: (404) 239-0419, or such other address or telecopy number as
may be
designated by Seller to Depositor in writing.
Section 15. Notice of Exchange Act Reportable Events. The
Seller
hereby agrees to deliver to the Depositor and the Trustee any
disclosure
information relating to any event reasonably determined in good
faith by the
Depositor as required to be reported on Form 8-K, Form 10-D or Form
10-K by the
Trust Fund (in formatting reasonably appropriate for inclusion in
such form),
including, without limitation, the disclosure required under Items
1117 and 1119
of Regulation AB and Item 1.03 to Form 8-K. The Seller shall use
its best
efforts to deliver proposed disclosure language relating to any
event described
under Items 1117 and 1119 of Regulation AB and Item 1.03 to Form
8-K to the
Trustee and the Depositor within one (1) business day and in any
event no later
than two (2) business days of the Seller becoming aware of such
event and shall
provide disclosure relating to any other event reasonably
determined by the
Depositor as required to be disclosed on Form 8-K, Form 10-D or
Form 10-K within
two (2) business days following the Depositor's request for such
disclosure
language. The obligation of the Seller to provide the above
referenced
disclosure materials will terminate upon notice from the Depositor
or the
Trustee that the Trustee has filed a Form 15 with respect to the
Trust Fund as
to that fiscal year in accordance with Section 11.10(a) of the
Pooling and
Servicing Agreement. The Seller hereby acknowledges that the
information to be
provided by it pursuant to this Section will be used in the
preparation of
reports meeting the reporting requirements of the Trust under
Section 13(a)
and/or Section 15(d) of the Securities Exchange Act of 1934, as
amended.
Section 16. 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 17. Successors. This Agreement shall inure to the
benefit
of and shall be binding upon Seller and Depositor and their
respective
successors and, permitted assigns 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
designated
Persons and for the benefit of no other Person; it being understood
that the
rights of Depositor pursuant to this Agreement, subject to all
limitations
herein contained, including those set forth in Section 7 of this
Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders,
as may be
required to effect the purposes of the Pooling and Servicing
Agreement and, upon
such assignment, the Trustee shall succeed to such rights of
Depositor
hereunder; provided that the Trustee shall have no right to further
assign such
rights to any other Person. No owner of a Certificate issued
pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or
permitted assign
because of such ownership.
Section 18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE
WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 19.
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 20. 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 21. 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 22. 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
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, securities 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.
* * *
<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.
COLUMN FINANCIAL, INC.,
as Seller
By: ________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: ________________________________
Name:
Title:
<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 September 1, 2006, between Column Financial, Inc. (the "Seller")
and Credit
Suisse First Boston Mortgage Securities Corp (the "Depositor").
Capitalized
terms used herein without definition have the meanings given them
in or by
reference in the Agreement or, if not defined in the Agreement, in
the Pooling
and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any
other
Person controlling or controlled by or under common control with
such specified
Person.
"Assignments" shall have the meaning given such term in Section
3
of this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of
this Agreement.
"CBA Mortgage Loan" means any Mortgage Loan that constitutes a
"CBA A Loan" under the Pooling and Servicing Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated September 21, 2006, between Depositor and the
Initial
Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2006-C4,
issued in multiple classes.
"Closing" shall have the meaning given that term in Section 2
of
this Agreement.
"Closing Date" means September 28, 2006.
"Closing S
