Exhibit 4.3
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
KEYBANK NATIONAL ASSOCIATION
(Seller)
-----------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of August 1, 2005
-----------------
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<PAGE>
TABLE OF CONTENTS
Page
----
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 KeyBank 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 August 1, 2005, is made by and between
KEYBANK NATIONAL ASSOCIATION, a
national banking association ("Seller"),
and CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP., a Delaware corporation
("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule
of Transaction Terms attached hereto
as Schedule I, which is incorporated herein
by this reference, or, if not
defined therein, in the Pooling and
Servicing Agreement.
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,
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 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
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 Seller,
and further endorsed by 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
2005-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 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 2005-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 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 2005-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 2005-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) 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 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 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, 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 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 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 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).
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
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 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, 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 upon its
return, together with the related
original UCC Financing Statement assignment
in a form appropriate for filing.
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 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 such
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
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, 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 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 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, 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) 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.
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 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 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 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 the 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 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 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 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 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) 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, Seller shall have delivered to the Trustee, on
or
before the Closing Date, five limited
powers of attorney in favor of the Trustee
and Special Servicer empowering the Trustee
and, in the event of the failure or
incapacity of the Trustee, the Special
Servicer, to record, at the expense of
Seller, any Mortgage Loan Documents
required to be recorded and any intervening
assignments with evidence of recording
thereon that are required to be included
in the Mortgage Files. If requested by the
Trustee or the Special Servicer after
the Closing Date, 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) 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
national
banking
association in good standing under the laws of the United
States.
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
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) 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 Seller receives notice of a breach of any of the
representations
or warranties contained in Exhibit A hereto
and made by 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 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 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) Seller has
commenced and is diligently proceeding
with the cure of such Material Breach or
Material Defect within the Initial
Resolution Period and (iv) Seller has
delivered to the Rating Agencies, the
Master Servicer, the Special Servicer and
the Trustee an Officer's Certificate
that describes the reasons that the cure
was not effected within the Initial
Resolution Period and the actions that it
proposes to take to effect the cure
and that states that it anticipates the
cure will be effected within the
additional 90-day period, then 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 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. The absence of a document
checklist from 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 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 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 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 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, 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 (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 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
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) 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
(i) 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, (ii) 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 (iii)
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 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 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 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
Seller, on the one hand, and any related
Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer
be cross-defaul
