EXHIBIT 4.2
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
------------------------------------------------
MORTGAGE
LOAN PURCHASE AGREEMENT
Dated as of December 1, 2004
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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..............................................
Section 14.
Notices......................................................
Section 15.
Examination of Mortgage Files................................
Section 16.
Successors...................................................
Section 17.
Governing Law................................................
Section 18.
Severability.................................................
Section 19.
Further Assurances...........................................
Section 20.
Counterparts.................................................
Section 21.
Treatment as Security Agreement..............................
Section 22.
Recordation of 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 December 1, 2004, 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, 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 Mortgage Loan to Wells Fargo Bank, N.A., as trustee (the
"Trustee"),
against receipt by Seller of a trust receipt, pursuant to an
arrangement between
Seller and the Trustee.
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, 100 Maiden Lane, New
York, New York 10038,
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 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 (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, 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
consist of the
following documents:
(a) each 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 the Seller, and further endorsed
by the Seller,
on its face or by allonge attached thereto, without recourse, in
blank or to the
order of the Trustee in the following form: "Pay to the order of
Wells Fargo
Bank, N.A., as trustee for the registered Holders of Credit Suisse
First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series
2004-C5, 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 the
Seller, in each
case in the form submitted for recording or, if recorded, with
evidence of
recording indicated thereon;
(c) an original assignment of Mortgage, in recordable form
(except
for any missing recording information and, if applicable,
completion of the name
of the assignee), from the Seller (or the Mortgage Loan
Originator), either in
blank or to "Wells Fargo Bank, N.A., as trustee for the registered
Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage
Pass-Through Certificates, Series 2004-C5";
(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 the 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 the Seller (or the Mortgage Loan Originator),
either in blank or
to "Wells Fargo Bank, N.A., as trustee for the registered Holders
of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through
Certificates, Series 2004-C5";
(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 the 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 the Seller (or the
Mortgage Loan
Originator), either in blank or to "Wells Fargo Bank, N.A., as
trustee for the
registered Holders of Credit Suisse First Boston Mortgage
Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C5,"
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) certified or other copies of all UCC Financing Statements
and
continuation statements which show the filing or recording thereof
or copies
thereof in the form submitted for filing or recording 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 that is
described in the
related Mortgage or a separate security agreement, and original UCC
Financing
Statement assignments in a form suitable for filing or recording,
sufficient to
transfer such UCC Financing Statements 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 (as applicable) any
Intercreditor
Agreement, mezzanine loan documents or preferred equity documents,
together
with, if the Mortgage Loan is an A Loan, a copy of the Note for
each related B
Loan;
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related cash collateral
control agreement
or lock-box control agreement, as applicable, and a copy of the UCC
Financing
Statements, if any, submitted for filing with respect to the
Seller's security
interest in the Cash Collateral Accounts and Lock-Box Accounts and
all funds
contained therein (together with UCC Financing Statement
assignments in a form
suitable for filing or recording, sufficient to transfer such UCC
Financing
Statements to the Trustee on behalf of the Certificateholders);
(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 Agreement (if separate from the
related Mortgage
and Loan Agreement);
(p) the originals of letters of credit, if any, relating to the
Mortgage Loan;
(q) any related environmental insurance policies and any
environmental guaranty or indemnity agreements or copies
thereof;
(r) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel,
or a copy of
any of the foregoing;
(s) copies of franchise agreements and franchisor comfort
letters,
if any, for hospitality properties; and
(t) if applicable (and not for purposes of the Seller's
delivery
obligations), 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(i) of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, the 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),
(l) 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 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 a duplicate
original or
true copy of such document certified by the applicable public
recording or
filing office, the applicable title insurance company or the 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 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 the 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 the
Seller's delivery
requirements under this Section 3 with respect to the subject
document(s).
Notwithstanding the foregoing, in the event that, in connection
with
any Mortgage Loan, the 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
other than in accordance with the transfer contemplated by this
Agreement), (l)
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 has been lost, the
delivery
requirements of this Agreement shall be deemed to have been
satisfied and such
non-delivered document shall be deemed to have been included in the
related
Mortgage File if a photocopy of such non-delivered document (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 on or before the Closing
Date.
Notwithstanding the foregoing, in the event that the Seller
cannot
deliver any UCC Financing Statement assignment with the filing
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
office where such UCC Financing Statement has been delivered for
filing, the
Seller shall so notify the Trustee and shall not be in breach of
its obligations
with respect to such delivery, provided that the Seller promptly
forwards such
UCC Financing Statement to the Trustee upon its return, together
with the
related original UCC Financing Statement assignment in a form
appropriate for
filing.
The 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 the Assignments for filing and
recording, as the
case may be, in the applicable public filing and recording offices
and to
deliver those Assignments to the Trustee or its designee as those
Assignments
(or certified copies thereof) are received from the applicable
filing and
recording offices with evidence of such filing or recording
indicated thereon.
In the event the Seller engages a third party contractor as
contemplated in the
immediately preceding sentence, the rights, duties and obligations
of the Seller
pursuant to this Agreement remain binding on such Seller; and, if
the Seller
does not engage a third party as contemplated by the immediately
preceding
sentence, then the 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, the
Seller
shall deliver the Servicer Files with respect to each of the
Mortgage Loans to
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 the Seller's
possession relating
to such applicable Mortgage Loans (including reserve and escrow
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
privileged communications and documents prepared by the 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 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 (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.
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.
The 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 the Seller or any other name, to be transferred to the
Master Servicer
(or a Sub-Servicer at the direction of the 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 Mortgage Note, the Mortgage
and the
contents of the related Mortgage File shall be vested in Depositor
and the
ownership of all records and documents with respect to the related
Mortgage Loan
prepared by or which come into the possession of Seller as seller
of the
Mortgage Loans hereunder, exclusive in each case of 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 Master Servicer via wire transfer for
deposit by the
Master Servicer into the Collection Account.
Upon 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 the Depositor, as provided herein, as a sale of
the Mortgage
Loans to the 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 the 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 the 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 the 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 in the Exception Report) shall be true and correct
in all
material respects as of the Closing Date; and no event shall have
occurred with
respect to the 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 the
Depositor's attorneys, shall have received in escrow, all of the
following
closing documents, in such forms as are agreed upon and reasonably
acceptable to
the Depositor and the Seller, duly executed by all signatories
other than
Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage Files, subject to the proviso to the first
sentence
of Section
1 of this Agreement, which shall have been delivered to and
held by
the Trustee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of the Seller confirming its
representations
and
warranties set forth in Section 6 (subject to the exceptions 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 the 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 the Depositor in order for the 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
the
Depositor
as contemplated herein.
(c) The 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) If requested, the 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 the 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. If requested by the Trustee
or the Special
Servicer after the Closing Date, the Seller shall deliver to the
Trustee or the
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 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:
(A) 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
(B) 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) The 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,
investigation, 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 owned by it 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
organizational documents; (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 the Depositor to realize on the Mortgage Loans owned
by
Seller.
(iv) Seller is solvent and the sale of 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 the
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 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 the 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 in the Exception Report, are true and
correct in
all material respects as of the date hereof (or, in each case,
as of such
other date specifically set forth in the subject representation
and
warranty) with respect to the Mortgage Loans identified on
Schedule
II.
(b) The 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 (subject to exceptions disclosed at such time) (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 any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases but shall not inure to the benefit of any subsequent
transferee
thereafter.
If the Seller receives notice of a breach of any of the
representations or warranties contained in Exhibit A hereto and
made by the
Seller with respect to any Mortgage Loan listed on Schedule II
hereto, as of the
date hereof in Section 6(a)(xii) or as of the Closing Date pursuant
to Section
4(b)(iii), 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
possession within the
time period required herein or (B) such document has not been
properly executed
or is otherwise defective on its face (the circumstances in the
foregoing
clauses (A) and (B), in each case, a "Defect" (including the
"Defects" described
below) in the related Mortgage File), and if such Breach or Defect,
as the case
may be, materially and adversely affects the value of the related
Mortgage Loan
or the interests of the Certificateholders therein (any Breach or
Defect that
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein, a "Material Breach"
and a "Material
Defect", respectively), then the Seller shall, upon request of the
Depositor,
the Trustee, the Master Servicer or the Special Servicer, not later
than the
earlier of 90 days from the receipt by the Seller of such 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 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 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) the Seller has commenced and is
diligently
proceeding with the cure of such Material Breach or Material Defect
within the
Initial Resolution Period and (iv) the 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, then the Seller shall have an additional
90 days to
cure such Material Defect or Material Breach. With respect to 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
related date of substitution shall be part of the Trust Fund; and
(C) scheduled
payments of principal and interest due with respect to such
Qualified Substitute
Mortgage Loan(s) on or prior to the related date of substitution
shall not be
part of the Trust Fund, and the Seller shall be entitled to receive
such
payments promptly following receipt by the Master Servicer or
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 "Defect" and to be conclusively presumed to
materially and
adversely affect the interests of Certificateholders in and the
value of a
Mortgage Loan: (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 and a certificate stating that the
original
intervening assignments were sent for recordation; (e) the absence
from the
Mortgage File of any required original letter of credit, provided
that such
Defect may be cured by any substitute letter of credit or cash
reserve on behalf
of the related Borrower; or (f) the absence from the Mortgage File
of the
original or a copy of any required ground lease.
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 to materially and adversely affect the interest
of
Certificateholders therein and the Initial Resolution Period for
the affected
Mortgage Loan shall be 90 days following the earlier of (a) notice
to Seller of
the discovery of such Defect or Breach by any party to the Pooling
and Servicing
Agreement or (b) Seller's discovery of such Defect or Breach (which
period shall
not be subject to extension).
If the 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 Breach or Defect is not capable of being so corrected or
cured within
such period, then the Seller shall purchase 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 the 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 the Crossed Mortgage
Loan
Repurchase Criteria would be so satisfied, the Mortgage Loan Seller
may elect
either to repurchase or substitute for only the affected Crossed
Mortgage Loan
as to which the Material Defect or Material Breach exists or to
repurchase or
substitute for the aggregated Crossed Mortgage Loans. The
determination of the
Special Servicer as to whether the Crossed Mortgage Loan Repurchase
Criteria
have been satisfied shall be conclusive and binding in the absence
of manifest
error. In the event that one or more of such other Crossed Mortgage
Loans
satisfy the Crossed Mortgage Loan Repurchase Criteria, the 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. The Seller
shall be responsible for the cost of (and, if so directed by the
Special
Servicer, obtaining) any Appraisal required for the Special
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 the 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, the
Seller will not
be obligated to repurchase or substitute for the entire Mortgage
Loan if the
Mortgaged Loan may, pursuant to the terms of the related Mortgage
Loan
Documents, be severed to allow for the repurchase of a portion of
the Mortgage
Loan representing the affected Mortgaged Property and the Mortgage
Loan
remaining after such severance satisfies the requirements, if any,
set forth in
the Mortgage Loan Documents and (i) the 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) such
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 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 the
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 the Depositor or the Trustee, as the case may be, and
the
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), 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, 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 the 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 the Seller set
forth in this Section 7 to cure, substitute for or repurchase a
Mortgage Loan
listed on Schedule II hereto constitute the sole remedies available
to the
Depositor and its successors and assigns against Seller respecting
any Breach or
Defect affecting such Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that the 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, the
Seller and the 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 the 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 the
Seller shall have furnished to the Trustee, at the Seller's
expense, an opinion
of counsel that such modification shall not cause an Adverse REMIC
Event;
provided, further, that if such opinion cannot be furnished, the
Seller and the
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 (in which case, the Seller will be obligated to
purchase all
Crossed Mortgage Loans). Any reserve or other cash collateral or
letters of
credit securing the affected 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 (unless otherwise modified in accordance with
the Pooling
and Servicing Agreement).
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.
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.
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 the consent of, notice to or any 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 9 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. Whether or not this Agreement
is
terminated, both the Depositor and the Seller agree to pay the
transaction
expenses incurred in connection with the transactions herein
contemplated as set
forth in the Closing Statement.
Section 13. Recording Costs. 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 co
