EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
and
KEYBANK NATIONAL ASSOCIATION
(Additional Party)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of August 11, 2004
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TABLE OF CONTENTS
Page
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Section 1.
Agreement to Purchase............................................2
Section 2.
Closing Date Actions.............................................2
Section 3.
Conveyance of Mortgage Loan......................................8
Section 4.
Depositor's Conditions to Closing................................9
Section 5.
Seller's Conditions to Closing..................................10
Section 6.
Representations and Warranties of Seller........................15
Section 7.
Obligations of Additional Party.................................13
Section 8.
Representations and Warranties of Additional Party..............15
Section 9.
Representations and Warranties of Depositor.....................15
Section 10.
Survival of Certain Representations, Warranties and Covenants...13
Section 11.
Transaction Expenses............................................18
Section 12.
Recording Costs and Expenses....................................18
Section 13.
Notices.........................................................18
Section 14.
Examination of Mortgage File....................................18
Section 15.
Successors......................................................18
Section 16.
Governing Law...................................................19
Section 17.
Severability....................................................19
Section 18.
Further Assurances..............................................19
Section 19.
Counterparts....................................................19
Section 20.
Treatment as Security Agreement.................................19
Section 21.
Recordation of Agreement........................................20
Schedule I
Schedule of Transaction Terms
Schedule II
Mortgage Loan Schedule
Schedule III [Reserved]
Schedule IV
[Reserved]
Schedule V
Exceptions to Seller's Representations and Warranties
Exhibit A
Representations and Warranties Regarding the Mortgage Loan
Exhibit B
[Reserved]
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MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of
August 11, 2004, is made by and between COLUMN FINANCIAL, INC., a
Delaware
corporation ("Column"), as seller (in such capacity, together with
its
successors and permitted assigns hereunder, "Seller"), and CREDIT
SUISSE FIRST
BOSTON MORTGAGE SECURITIES CORP., a Delaware corporation ("CSFB
Mortgage
Securities"), as purchaser (in such capacity, together with its
successors and
permitted assigns hereunder, "Depositor"), and KEYBANK NATIONAL
ASSOCIATION, a
national banking association ("KeyBank"), as an additional party
(in such
capacity, together with its successors and permitted assigns
hereunder,
"Additional Party").
RECITALS
I. Capitalized terms used herein without definition have the
meanings
ascribed to them in the Schedule of Transaction Terms attached
hereto as
Schedule I, which is incorporated herein by this reference, or, if
not defined
therein, in the Pooling and Servicing Agreement specified on such
Schedule of
Transaction Terms.
II. On the Closing Date, and on the terms set forth herein, Seller
has
agreed to sell to Depositor and Depositor has agreed to purchase
from Seller the
mortgage loan identified on the schedule (the "Mortgage Loan
Schedule") annexed
hereto as Schedule II (the "Mortgage Loan"). Depositor intends to
deposit the
Mortgage Loan 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.
III. Column purchased the Mortgage Loan from KeyBank on August 19,
2004. In
connection with its sale of the Mortgage Loan to Column, KeyBank
agreed to make
certain representations and warranties with respect to the Mortgage
Loan, and to
cause the delivery of certain documents with respect to the
Mortgage Loan, to
any person or entity that acquired the Mortgage Loan from Column,
in accordance
with the terms and provisions of the mortgage loan purchase
agreement whereby
Column acquired the Mortgage Loan from KeyBank. In satisfaction of
its agreement
with Column, KeyBank, as Additional Party, is making the
representations and
warranties in this Agreement, and delivering or causing the
delivery of the
documents required by this Agreement, with respect to the Mortgage
Loan.
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, Seller and Additional Party agree as
follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior to the
Closing Date, with the reasonable cooperation of Seller, Additional
Party shall
have delivered the Mortgage File with respect to the Mortgage Loan
listed in the
Mortgage Loan Schedule to Wells Fargo Bank, N.A. as trustee (the
"Trustee") or
its designee, against receipt by Additional Party of a written
receipt, pursuant
to an arrangement between Additional Party and the Trustee;
provided, however,
that item (xvi) in the definition of Mortgage File (below) shall be
delivered to
the Master Servicer for inclusion in the Servicer File (defined
below) with a
copy delivered to the Trustee for inclusion in the Mortgage File;
provided
further, that the Additional Party shall pay (or cause the related
Borrower to
pay) any costs of the assignment or amendment of each letter of
credit described
under such item (xvi) required in order for the Trustee to draw on
such letter
of credit pursuant to the terms of the Pooling and Servicing
Agreement and, with
the reasonable cooperation of Seller, shall deliver or cause the
delivery of the
related assignment or amendment documents within thirty (30) days
after the
Closing Date, which period may be extended by thirty (30) days as
provided in
the Pooling and Servicing Agreement. In addition, prior to such
assignment or
amendment of a letter of credit, with the reasonable cooperation of
Seller,
Additional Party will take all necessary steps to enable the Master
Servicer to
draw on the related letter of credit on behalf of the Trustee
pursuant to the
terms of the Pooling and Servicing Agreement, including, if
necessary, drawing
on the letter of credit in its own name pursuant to written
instructions to draw
from the Master Servicer and upon receipt, immediately remitting
the proceeds of
such draw (or causing such proceeds to be remitted) to the Master
Servicer.
Section 2. Closing Date Actions. The sale of the Mortgage Loan
shall take
place on the Closing Date, subject to and simultaneously with the
deposit of the
Mortgage Loan into the Trust Fund, the issuance of the
Certificates, the sale of
the Publicly Offered Certificates by Depositor to the Underwriters
pursuant to
the Underwriting Agreement and the sale of the Private Certificates
by Depositor
to the Initial Purchaser pursuant to the Certificate Purchase
Agreement. The
closing (the "Closing") shall take place at the offices of Sidley
Austin Brown &
Wood LLP, 787 Seventh Avenue, New York, New York 10019, or such
other location
as agreed upon between the parties hereto. On the Closing Date, the
following
actions shall take place in sequential order on the terms set forth
herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from
Seller, the Mortgage Loan pursuant to this Agreement for the
Mortgage Loan
Purchase Price payable in accordance with instructions previously
provided
to Depositor by Seller. The Mortgage Loan Purchase Price shall be
paid by
Depositor to Seller or at its direction by wire transfer in
immediately
available funds to an account designated by Seller on or prior to
the
Closing Date. The "Mortgage Loan Purchase Price" shall be the price
mutually agreed upon as such in writing between Depositor and
Seller.
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall transfer all of its right, title and interest in,
to and
under the Mortgage Loan to the Trustee (for the benefit of the
Holders of
the Certificates) in exchange for the issuance of the Certificates
to or at
the direction of Depositor.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters
shall purchase from Depositor, the Publicly Offered Certificates
pursuant
to the Underwriting Agreement, and Depositor shall sell to the
Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor,
the
Private Certificates pursuant to the Certificate Purchase
Agreement.
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(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 Loan. Effective as of the Closing
Date,
subject only to Seller's receipt of the Mortgage Loan Purchase
Price, Seller
does hereby assign, transfer, set over and otherwise convey,
without recourse,
to Depositor, free and clear of any liens, claims or other
encumbrances, all of
Seller's right, title and interest in, to and under: (i) the
Mortgage Loan
identified on the Mortgage Loan Schedule and (ii) all property of
Seller
described in Section 20(b) of this Agreement, including, without
limitation, (A)
all scheduled payments of interest and principal due on or with
respect to the
Mortgage Loan after the Cut-off Date and (B) all other payments of
interest,
principal or prepayment premiums received on or with respect to the
Mortgage
Loan after the Cut-off Date, other than any such payments of
interest or
principal or prepayment premiums that were due on or prior to the
Cut-off Date.
The parties acknowledge that such assignment, transfer, setting
over and other
conveyance shall not be construed to limit any obligation of Seller
and any
servicing rights of Midland Loan Services, Inc. under that certain
servicing
rights purchase agreement, dated as of August 1, 2004, between
Seller and
Midland Loan Services, Inc. or any primary servicing rights of
KeyCorp Real
Estate Capital Markets, Inc. under any Primary Servicing Agreement
with respect
to the Mortgage Loan. The Mortgage File for each Mortgage Loan
shall contain the
following documents on a collective basis:
(i) the original Note, bearing, or accompanied by, all prior and
intervening endorsements or assignments showing a complete chain of
endorsement or assignment from the applicable Mortgage Loan
Originator
either in blank or to Seller, and further endorsed (at the
direction of
Depositor given pursuant to this Agreement) by Seller (or, if
appropriate,
Additional Party), on its face or by allonge attached thereto,
without
recourse, either in blank or to the order of the Trustee in the
following
form: "Pay to the order of Wells Fargo Bank, N.A., as trustee for
the
registered Holders of Credit Suisse First Boston Mortgage
Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3,
without
recourse, representation or warranty, express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office,
(A) an
original, (B) a certified copy or (C) a copy thereof from the
applicable
recording office, and originals or counterparts (or originals,
certified
copies or copies from the applicable recording office) of any
intervening
assignments thereof from the applicable Mortgage Loan Originator to
Seller,
in each case in the form submitted for recording or, if recorded,
with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the
applicable
Mortgage Loan Originator) (or, if appropriate, Additional Party)
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-C3";
(iv) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and
the
originals, counterparts or copies of
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any intervening assignments thereof from the applicable Mortgage
Loan
Originator of the Mortgage Loan to Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording
thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in recordable
form
(except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the
applicable
Mortgage Loan Originator) (or, if appropriate, Additional Party),
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-C3";
(vi) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage),
and the
originals or copies of any intervening assignments thereof from the
applicable Mortgage Loan Originator to Seller;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), from Seller
(or the
applicable Mortgage Loan Originator) (or, if appropriate,
Additional
Party), 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-C3,"
which
assignment may be included as part of an omnibus assignment
covering other
documents relating to the Mortgage Loan (provided that such omnibus
assignment is effective under applicable law);
(viii) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D)
substitution
agreements, together with any evidence of recording thereon or in
the form
submitted for recording, in those instances where the terms or
provisions
of the Mortgage, Note or any related security document have been
modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or
subsequent to the issuance of such policy), or if the policy has
not yet
been issued, the original or a copy of a binding written commitment
(which
may be a pro forma or specimen title insurance policy which has
been
accepted or approved in writing by the related title insurance
company, or
an interim binder that is "marked up" as binding and countersigned
by the
title company, which in any case is binding on the title insurance
company), insuring the priority of the Mortgage as a first lien on
the
related Mortgaged Property, relating to the Mortgage Loan;
(x) the original or a counterpart of any guaranty of the
obligations
of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the
filing or
recording thereof (including the filing number or other similar
filing
information) or, alternatively, other evidence of filing or
recording
(including the filing number or other similar filing information)
acceptable to the Trustee (including, without limitation, evidence
of such
filed or recorded UCC Financing Statement as shown on a written UCC
search
report from a reputable search firm, such as
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CSC/LexisNexis Document Solutions, Corporation Service Company, CT
Corporation System and the like or printouts of on-line
confirmations from
such UCC filing or recording offices or authorized agents thereof),
sufficient to perfect (and maintain the perfection of) the security
interest held by the applicable Mortgage Loan Originator (and each
assignee
of record prior to the Trustee) in and to the personalty of the
Borrower at
the Mortgaged Property, and original UCC Financing Statement
assignments,
in a form suitable for filing or recording, sufficient to assign
each such
UCC Financing Statement to the Trustee;
(xii) the original or copy of the power of attorney (with evidence
of
recording thereon) granted by the Borrower if the Mortgage, Note or
other
document or instrument referred to above was not signed by the
Borrower;
(xiii) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination
agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement
relating to such other debt, if any, including any mezzanine loan
documents
or preferred equity documents;
(xiv) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control
agreement;
(xv) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related
Lock-Box
Agreement or Cash Collateral Account Agreement (if separate from
the
related Mortgage and Loan Agreement);
(xvi) the originals and copies of letters of credit, if any,
relating
to the Mortgage Loan and amendments thereto which entitles the
Trust to
draw thereon; provided that in connection with the delivery of the
Mortgage
File to the Trust, such originals shall be delivered to the Master
Servicer
and copies thereof shall be delivered to the Trustee;
(xvii) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(xviii) the original or a copy of the ground lease and ground lease
estoppels, if any, and of any amendments, modifications or
extensions
thereto, if any;
(xix) the original or copy of any property management agreement;
(xx) without duplication with clause (xiii) above, a copy of the
mortgage note evidencing the related Junior Loan, if any;
(xxi) [reserved]; and
(xxii) a checklist of the related Mortgage Loan Documents included
in
the subject Mortgage File;
Notwithstanding the foregoing, in the event that, in connection
with the
Mortgage Loan, Additional Party (with reasonable cooperation of
Seller) cannot
deliver, or cause to be delivered, an
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original, counterpart or certified copy, as applicable, of any of
the documents
and/or instruments required to be delivered pursuant to clauses
(ii) (relating
to Mortgages), (iv) (relating to Assignments of Leases), (viii)
(relating to
assumption agreements, modifications, written assurance agreements
and
substitution agreements), (xi) (relating to UCC Financing
Statements and related
documents)(other than assignments of UCC Financing Statements to be
recorded or
filed in accordance with the transfer contemplated by this
Agreement) and (xii)
(relating to powers of attorney) of the last sentence of the first
paragraph of
this Section 3, with evidence of recording or filing thereon on the
Closing
Date, solely because of a delay caused by the public recording or
filing office
where such document or instrument has been delivered for
recordation or filing,
the delivery requirements of such last sentence of such first
paragraph of this
Section 3 should be deemed to have been satisfied and such
non-delivered
document or instrument shall be deemed to have been included in the
Mortgage
File; provided that (or, if appropriate, Additional Party): (i)
shall deliver,
or cause to be delivered, to the Trustee or its designee and the
Master Servicer
a duplicate original or true copy of such document or instrument
(certified by
the applicable public recording or filing office, the applicable
title insurance
company or Seller to be a true and complete duplicate original or
photocopy of
the original thereof submitted for recording or filing) on the
Closing Date; and
(ii) shall deliver, or cause to be delivered, to the Trustee or its
designee
(with a copy thereof to the Master Servicer) either the original of
such
non-delivered document or instrument, or a photocopy thereof
(certified by the
appropriate public recording or filing office to be a true and
complete copy of
the original thereof submitted for recording or filing), with
evidence of
recording or filing thereon within 120 days of the Closing Date,
which period
may be extended up to two times, in each case for an additional
period of 45
days provided that Seller, as certified in writing to the Trustee
prior to each
such 45-day extension, is in good faith attempting to obtain from
the
appropriate county recorder's office such original or photocopy.
Notwithstanding the foregoing, in the event that, in connection
with the
Mortgage Loan, Seller (or, if appropriate, Additional Party) cannot
deliver, or
cause to be delivered, an original, counterpart or certified copy,
as
applicable, of any of the documents and/or instruments required to
be delivered
pursuant to clauses (ii) (relating to Mortgages), (iv) (relating to
Assigments
of Leases), (viii) (relating to assumption agreements,
modifications, written
assurance agreements and substitution agreements), (xi) (relating
to UCC
Financing Statements and related documents) (other than assignments
of UCC
Financing Statements to be recorded or filed in accordance with the
transfer
contemplated by this Agreement) and (xii) (relating to powers of
attorney) of
the last sentence of the first paragraph of this Section 3, with
evidence of
recording or filing thereon for any other reason, including without
limitation,
that such non-delivered document or instrument has been lost, the
delivery
requirements of this Agreement shall be deemed to have been
satisfied and such
non-delivered document or instrument shall be deemed to have been
included in
the related Mortgage File if a photocopy or duplicate original of
such
non-delivered document or instrument (with evidence of recording or
filing
thereon and certified by the appropriate recording or filing office
to be a true
and complete copy of the original thereof as filed or recorded) is
delivered to
the Trustee or its designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that Seller (or, if
appropriate, Additional Party) cannot deliver or cause to be
delivered, as to
the Mortgage Loan, any UCC Financing Statement assignment with the
filing or
recording information of the related UCC Financing Statement with
respect to the
Mortgage Loan, solely because such UCC Financing Statement has not
been returned
by the applicable public filing or recording office where such UCC
Financing
Statement has been delivered for filing or recording, Additional
Party shall not
be in breach of its obligations with respect to such
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delivery, provided that Additional Party promptly forwards or
causes to be
forwarded such UCC Financing Statement to the Trustee or its
designee (with a
copy to the Master Servicer) upon its return from the applicable
filing or
recording office, together with the related original UCC Financing
Statement
assignment in a form appropriate for filing or recording.
Notwithstanding the foregoing, Additional Party may elect, at its
sole cost
and expense, to engage a third-party contractor to prepare or
complete in proper
form for filing or recording any and all of the assignments of
Mortgage,
assignments of Assignments of Leases and assignments of UCC
Financing Statements
to the Trustee to be delivered pursuant to clauses (iii), (v), and
(xi) of the
last sentence of the first paragraph of this Section 3
(collectively, the
"Assignments"), to submit such Assignments for filing and
recording, as the case
may be, in the applicable public filing and recording offices and
to deliver
such Assignments to the Trustee or its designee (with a copy to the
Master
Servicer) as such Assignments (or certified copies thereof) are
received from
the applicable filing and recording offices with evidence of such
filing or
recording indicated thereon. However, in the event Additional Party
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 Additional Party.
Within ten (10) Business Days after the Closing Date, Additional
Party
(with reasonable cooperation of Seller) shall deliver, or cause to
be delivered,
the Servicer File with respect to the Mortgage Loan to the Master
Servicer (or,
if applicable, to a Sub-Servicer (with a copy to the Master
Servicer) at the
direction of the Master Servicer), under the Pooling and Servicing
Agreement on
behalf of the Trustee in trust for the benefit of the
Certificateholders. Such
Servicer File shall contain all documents and records in Additional
Party's (or,
if previously delivered by Additional Party to Seller, in Seller's)
possession
relating to the Mortgage Loan and constituting the related
Servicing File (as
defined in the Pooling and Servicing Agreement).
Additional Party (with the reasonable cooperation of 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 Loan in the name of
Additional Party or
any other name to be transferred to or at the direction of the
Master Servicer
(or, if applicable, to a Sub-Servicer at the direction of the
Master Servicer).
The Trustee, as assignee or transferee of Depositor, shall be
entitled to
all scheduled principal payments due after the Cut-off Date, all
other payments
of principal due and collected after the Cut-off Date, and all
payments of
interest on the Mortgage Loan, 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 Loan from Seller to Depositor
pursuant
hereto, the ownership of the Note, the related Mortgage and the
contents of the
related Mortgage File shall be vested in Depositor and the
ownership of all
records and documents that constitute the Servicer File with
respect to the
related Mortgage Loan shall immediately vest in Depositor. All
Monthly Payments,
Principal Prepayments and other amounts received by Seller and not
otherwise
belonging to Seller pursuant to this Agreement shall be sent by
Seller within
three (3) Business Days after Seller's receipt
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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 Loan to Depositor, as provided herein, as a sale of the
Mortgage Loan
to Depositor in exchange for the consideration specified in Section
2 hereof. In
connection with the foregoing, upon sale of Certificates
representing at least
10% of the fair value of all the Certificates to unaffiliated third
parties,
Seller shall cause all of its financial and accounting records to
reflect such
transfer as a sale (as opposed to a secured loan). 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 Loan have been transferred to
Depositor and
are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loan to Depositor, as
provided
herein, neither Additional Party nor Seller shall take any action
inconsistent
with Depositor's ownership (or the ownership by any of Depositor's
assignees) of
the Mortgage Loan. 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 either Additional Party or Seller
is expressly
permitted to complete subsequent to the Closing Date, each of
Additional Party
and Seller shall, on or before the Closing Date, take all actions
required under
applicable law to effectuate the transfer of the Mortgage Loan by
Seller to
Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor
to purchase the Mortgage Loan 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) The obligations of each of Seller and Additional Party 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 each of
Seller and
Additional Party under this Agreement (subject to the exceptions
set forth in
the Exception Report) shall be true and correct in all material
respects as of
the Closing Date; no event shall have occurred with respect to
either of Seller
and Additional Party or the Mortgage Loan and related Mortgage File
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 and Additional
Party,
respectively.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's
attorneys or other designee, shall have received in escrow, all of
the following
closing documents, in such forms as are agreed upon and reasonably
acceptable to
Depositor, Seller and Additional Party, duly executed by all
signatories other
than Depositor, as required pursuant to the respective terms
thereof:
(i) the Mortgage File, subject to the provisos of Section 1 of this
Agreement, which shall have been delivered to and held by the
Trustee or
its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
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(iii) the certificate of Additional Party confirming its
representations and warranties set forth in Section 8 (subject to
the
exceptions set forth in the Exception Report) as of the Closing
Date;
(iv) the certificate of Seller confirming its representations and
warranties set forth in Section 6;
(v) an opinion or opinions of each of Additional Party's counsel
and
Seller's counsel, respectively, dated the Closing Date, covering
various
corporate matters and such other matters as shall be reasonably
required by
Depositor;
(vi) such other certificates of each of Additional Party's and
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
(vii) all other information, documents, certificates, or letters
with
respect to the Mortgage Loan or Additional Party, Seller and their
respective Affiliates as are reasonably requested by Depositor in
order for
Depositor to perform any of it obligations or satisfy any of the
conditions
on its part to be performed or satisfied pursuant to any sale of
Mortgage
Loan by Depositor as contemplated herein.
(c) Each of Additional Party and Seller shall have performed or
complied
with all other terms and conditions of this Agreement which it is
required to
perform or comply with at or before the Closing and shall have the
ability to
perform or comply with all duties, obligations, provisions and
terms which it is
required to perform or comply with after the Closing.
(d) Seller (or, if appropriate, Additional Party) 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 Additional Party, 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 File.
Seller and
Additional Party shall each reasonably cooperate with the Trustee
and the
Special Servicer in connection with any additional powers or
revisions thereto
that are requested by such parties.
Section 5. Seller's Conditions to Closing. The obligations of
Seller under
this Agreement shall be subject to the satisfaction, on the Closing
Date, of the
following conditions:
(a) Each of the obligations of Depositor required to be performed
by it on
or prior to the Closing Date pursuant to the terms of this
Agreement shall have
been duly performed and complied with in all material respects; and
all of the
representations and warranties of Depositor under this Agreement
shall be true
and correct in all material respects as of the Closing Date; and no
event shall
have occurred with respect to Depositor which, with notice or the
passage of
time, would constitute a material default under this Agreement, and
Seller shall
have received certificates to that effect signed by authorized
officers of
Depositor.
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(b) Seller shall have received all of the following closing
documents, in
such forms as are agreed upon and reasonably acceptable to Seller
and Depositor,
duly executed by all signatories other than Seller, as required
pursuant to the
respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the Closing
Date, with the resolutions of Depositor authorizing the
transactions set
forth therein, together with copies of the charter, by-laws and
certificate
of good standing dated as of a recent date of Depositor; and
(ii) such other certificates of its officers or others, such
opinions
of Depositor's counsel and such other documents required to
evidence
fulfillment of the conditions set forth in this Agreement as Seller
or its
counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and
conditions of this Agreement which it is required to perform or
comply with at
or before the Closing and shall have the ability to perform or
comply with all
duties, obligations, provisions and terms which it is required to
perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller. Seller
represents and
warrants to Depositor and Additional Party as of the date hereof,
as follows:
(a) Seller is duly organized and is validly existing as a
corporation in
good standing under the laws of the State of Delaware. Seller has
conducted and
is conducting its business so as to comply in all material respects
with all
applicable statutes and regulations of regulatory bodies or
agencies having
jurisdiction over it, except where the failure so to comply would
not have a
materially adverse effect on the performance by Seller of this
Agreement, and
there is no charge, action, suit or proceeding before or by any
court,
regulatory authority or governmental agency or body pending or, to
the knowledge
of Seller, threatened, which is reasonably likely to materially and
adversely
affect the performance by Seller of this Agreement or the
consummation of
transactions contemplated by this Agreement.
(b) Seller has the full power, authority and legal right to hold,
transfer
and convey its interest in the Mortgage Loan 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.
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(c) Neither the execution, delivery and performance of this
Agreement, nor
the fulfillment of or compliance with the terms and conditions of
this Agreement
by Seller, will (A) conflict with or result in a breach of any of
the terms,
conditions or provisions of Seller's articles or certificate of
incorporation
and bylaws or similar type organizational documents, as applicable;
(B) conflict
with, result in a breach of, or constitute a default or result in
an
acceleration under, any agreement or instrument to which Seller is
now a party
or by which it (or any of its properties) is bound if compliance
therewith is
necessary (1) to ensure the enforceability of this Agreement or (2)
for Seller
to perform its duties and obligations under this Agreement (or any
agreement or
document executed and delivered by Seller in connection herewith);
(C) conflict
with or result in a breach of any legal restriction if compliance
therewith is
necessary (1) to ensure the enforceability of this Agreement or (2)
for Seller
to perform its duties and obligations under this Agreement (or any
agreement or
document executed and delivered by Seller in connection herewith);
(D) result in
the violation of any law, rule, regulation, order, judgment or
decree to which
Seller or its property is subject if compliance therewith is
necessary (1) to
ensure the enforceability of this Agreement or (2) for Seller to
perform its
duties and obligations under this Agreement (or any agreement or
document
executed and delivered by Seller in connection herewith); or (E)
result in the
creation or imposition of any lien, charge or encumbrance that
would have a
material adverse effect upon Seller's ability to perform its duties
and
obligations under this Agreement (or any agreement or document
executed and
delivered by Seller in connection herewith), or materially impair
the ability of
Depositor to realize on the Mortgage Loan.
(d) Seller is solvent and the sale of the Mortgage Loan (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 Loan, 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.
(e) 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 Loan, or (C) the
consummation by Seller
of the transactions contemplated by this Agreement (or any
agreement or document
executed and delivered by Seller in connection herewith) or, to the
extent so
required, such consent, approval, authorization, order,
registration, filing or
notice has been obtained, made or given (as applicable), except for
the filing
or recording of assignments and other Mortgage Loan Documents
contemplated by
the terms of this Agreement and except that Seller may not be duly
qualified to
transact business as a foreign corporation or licensed in one or
more states if
such qualification or licensing is not necessary to ensure the
enforceability of
this Agreement (or any agreement or document executed and delivered
by Seller in
connection herewith).
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(f) In connection with its sale of the Mortgage Loan, Seller is
receiving
new value. The consideration received by Seller upon the sale of
the Mortgage
Loan constitutes at least fair consideration and reasonably
equivalent value for
the Mortgage Loan.
(g) 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).
(h) 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).
(i) 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 Loan pursuant to this
Agreement are
not subject to the bulk transfer or similar statutory provisions in
effect in
any applicable jurisdiction. The Mortgage Loan do not constitute
all or
substantially all of Seller's assets.
(j) 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 Loan to Depositor hereunder except
for (A) the
reimbursement of expenses as described herein or otherwise in
connection with
the transactions contemplated by the Pooling and Servicing
Agreement and the
issuance of the Certificates and (B) the commissions or
compensation owed to the
Underwriters or the Initial Purchaser.
(k) 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.
(l) Seller has such right, title and interest in and to the
Mortgage Loan
as was transferred to it by Additional Party.
(m) Seller has not transferred any of its right, title and interest
in and
to the Mortgage Loan to any Person other than Depositor hereunder.
(n) Seller is transferring all of its right, title and interest in
and to
the Mortgage Loan to Depositor hereunder free and clear of any and
all liens,
pledges, charges, security interests and other encumbrances created
by or
through Seller.
(o) Seller has not taken any action that would cause the
representations
and warranties made by a Borrower in the related Mortgage Loan
Documents not to
be true;
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(p) Seller has not taken any action which would, in the case of the
Mortgage Loan, cause the Mortgaged Property to not be in compliance
with all
federal, state and local environmental laws pertaining to
environmental hazards;
(q) No advance of funds has been made by Seller to the related
Borrower
(other than mezzanine debt and the acquisition of preferred equity
interests by
the preferred equity interest holder, as disclosed in the
Prospectus
Supplement), and no funds have, to Seller's knowledge, been
received from any
person other than, or on behalf of, the related Borrower, for, or
on account of,
payments due on the Mortgage Loan;
Section 7. Obligations of Additional Party. Each of the
representations and
warranties contained in or required to be made by Additional Party
pursuant to
Section 8 of this Agreement shall survive the sale of the Mortgage
Loan 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 Additional Party
pursuant to
Section 8 of this Agreement shall not be impaired by any review or
examination
of the Mortgage File or other documents evidencing or relating to
the Mortgage
Loan 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 Loan
from Depositor including, without limitation, the Trustee for the
benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or
qualified
endorsement on any Note, assignment of Mortgage or reassignment of
Assignment of
Leases or (2) any termination of this Agreement prior to the
Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If any Certificateholder, the Master Servicer, the Special Servicer
or the
Trustee discovers or receives notice of a breach of any of the
representations
or warranties made by Additional Party with respect to the Mortgage
Loans
(subject to the exceptions to such representations and warranties
set forth in
the Exception Report), as of the date hereof in Section 8(viii) or
as of the
Closing Date pursuant to Section 4(b)(iii) (in any such case, a
"Breach"), or
discovers or receives notice that (a) any document required to be
included in
the Mortgage File related to any Mortgage Loan is not in the
Trustee's (or its
designee's) possession within the time period required herein or
(b) such
document has not been properly executed or is otherwise defective
on its face
(clause (a) and clause (b) each, a "Defect" (which term shall
include the
"Defects" described in the immediately following paragraph) in the
related
Mortgage File), such party shall give notice to the Master
Servicer, the Special
Servicer, the Trustee and the Rating Agencies. If the Master
Servicer or the
Special Servicer determines that such Breach or Defect materially
and adversely
affects the value of any Mortgage Loan or REO Loan or the interests
of the
Holders of any Class of Certificates (in which case such Breach or
Defect shall
be a "Material Breach" or a "Material Defect", as applicable), it
shall give
prompt written notice of such Breach or Defect to the Depositor,
the Trustee,
the Master Servicer, the Special Servicer and the Additional Party
and shall
request that the Additional Party not later than the earlier of 90
days from the
receipt by the Additional Party of such notice or discovery by the
Additional
Party of such Breach or Defect (subject to the second succeeding
paragraph, the
"Initial Resolution Period"): (i) cure such Breach or Defect in all
material
respects; (ii) repurchase the affected Mortgage Loan at the
applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii)
substitute,
in accordance with the Pooling and Servicing Agreement, one or more
Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing
Agreement)
for such affected Mortgage Loan (provided that in no event shall
any
substitution
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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 Additional Party shall have an
additional 90
days to cure such Material Breach or Material Defect if all of the
following
conditions are satisfied: (i) such Material Breach or Material
Defect is capable
of being cured but not within the Initial Resolution Period; (ii)
such Material
Breach or Material Defect does not cause the related Mortgage Loan
not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of
the Code);
(iii) Additional Party has commenced and is diligently proceeding
with the cure
of such Material Breach or Material Defect within the Initial
Resolution Period;
and (iv) Additional Party has delivered to the Rating Agencies, the
Master
Servicer, the Special Servicer and the Trustee an Officer's
Certificate that
describes the reasons that the cure was not effected within the
Initial
Resolution Period and the actions that it proposes to take to
effect the cure
and that states that it anticipates the cure will be effected
within the
additional 90-day period. If there exists a Breach of any
representation or
warranty that the related Mortgage Loan Documents or any particular
Mortgage
Loan Document requires the related Borrower to bear the costs and
expenses
associated with any particular action or matter under such Mortgage
Loan
Document(s), then Additional Party shall cure such Breach within
the Initial
Resolution Period by reimbursing the Trust Fund (by wire transfer
of immediately
available funds to the Collection Account) the reasonable amount of
any such
costs and expenses incurred by the Master Servicer, the Special
Servicer, the
Trustee or the Trust Fund that are the basis of such Breach and
have not been
reimbursed by the related Borrower; provided, however, that in the
event any
such costs and expenses exceed $10,000, Additional Party shall have
the option
to either repurchase the related Mortgage Loan at the applicable
Purchase Price,
replace the Mortgage Loan and pay any applicable Substitution
Shortfall Amount
or pay such costs and expenses. Except as provided in the proviso
to the
immediately preceding sentence, Additional Party shall remit the
amount of such
costs and expenses and upon its making such remittance, Additional
Party shall
be deemed to have cured such Breach in all respects. With respect
to any
repurchase of the Mortgage Loan hereunder or any substitution of
one or more
Qualified Substitute Mortgage Loans for the Mortgage Loan
hereunder, (A) no such
substitution may be made in any calendar month after the
Determination Date for
such month; (B) scheduled payments of principal and interest due
with respect to
the Qualified Substitute Mortgage Loan(s) after the Due Date in the
month of
substitution, and scheduled payments of principal and interest due
with respect
to each Mortgage Loan being repurchased or replaced after the
related Due Date
in August 2004 and received by the Master Servicer or the Special
Servicer on
behalf of the Trust on or prior to the related date of repurchase
or
substitution, shall be part of the Trust Fund; and (C) scheduled
payments of
principal and interest due with respect to each such Qualified
Substitute
Mortgage Loan on or prior to the Due Date in the month of
substitution, and
scheduled payments of principal and interest due with respect to
each Mortgage
Loan being repurchased or replaced and received by the Master
Servicer or the
Special Servicer on behalf of the Trust after the related date of
repurchase or
substitution, shall not be part of the Trust Fund, and Additional
Party (or, if
applicable, any person effecting the related repurchase or
substitution in the
place of Additional Party) shall be entitled to receive such
payments promptly
following receipt by the Master Servicer or the Special Servicer,
as applicable,
under the Pooling and Servicing Agreement.
Any of the following will cause a document in the Mortgage File to
be
deemed to have a "Material Defect": (a) the absence from the
Mortgage File of
the original signed Note; (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
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recording information; (c) the absence from the Mortgage File of
the item called
for by clause (ix) (relating to evidence of title insurance) of the
last
sentence of the first paragraph of Section 3 hereof; (d) the
absence from the
Mortgage File of any intervening assignments required to create an
effective
assignment to the Trustee on behalf of the Trust, unless there is
included in
the Mortgage File a certified copy of the intervening assignment as
recorded or
as sent for recordation, together with a certificate stating that
the original
intervening assignment was sent for recordation; (e) the absence
from the
Mortgage File (or the Servicer File) of any required original
letter of credit
(as required in the provisos of Section 1 hereof), provided that
such Defect may
be cured by any substitute letter of credit or cash reserve on
behalf of the
related Borrower; or (f) the absence from the Mortgage File of the
original or a
copy of any required ground lease. In addition, Additional Party
shall cure any
Defect described in clause (b), (c), (e) or (f) of the immediately
preceding
sentence as required in Section 2.02(b) of the Pooling and
Servicing Agreement.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified
mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed
a "Material Defect" or "Material Breach", as applicable, and the
Initial
Resolution Period for the affected Mortgage Loan shall be 90 days
following the
earlier of Additional Party's receipt of notice (pursuant to this
Section 7)
with respect to, or its discovery of, such Defect or Breach (which
period shall
not be subject to extension).
If Additional Party does not, as required by this Section 7,
correct or
cure a Material Breach or a Material Defect in all material
respects within the
applicable Initial Resolution Period (as extended pursuant to this
Section 7),
or if such Material Breach or Material Defect is not capable of
being so
corrected or cured within such period, then Additional Party shall
repurchase or
substitute for the affected Mortgage Loan as provided in this
Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or
substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the
assignment of the Mortgage Loans to the Trustee, the Trustee as its
assignee, by
wire transfer of immediately available funds to the account
designated by
Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as
the case may be, upon receipt of such funds, shall promptly release
the related
Mortgage File and Servicer File or cause them to be released, to
Additional
Party and shall execute and deliver such instruments of transfer or
assignment
as shall be necessary to vest in Additional Party the legal and
beneficial
ownership of the Mortgage Loan (including any property acquired in
respect
thereof or proceeds of any insurance policy with respect thereto)
and the
related Mortgage Loan Documents.
It is understood and agreed that the obligations of Additional
Party set
forth in this Section 7 to cure, substitute for or repurchase a
Mortgage Loan
constitute the sole remedies available to Depositor and its
successors and
assigns respecting any Breach or Defect affecting the Mortgage
Loan.
Section 8. Representations and Warranties of Additional Party.
Additional
Party represents and warrants to Depositor and Seller as of the
date hereof, as
follows:
(i) Additional Party is a national banking association duly
organized,
validly existing and in good standing under the laws of the United
States.
(ii) The execution and delivery by Additional Party of, and the
performance by Additional Party under, this Agreement, and the
consummation
by Additional Party of the
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transactions herein contemplated, will not: (a) violate Additional
Party's
organizational documents; or (b) constitute a default (or an event
which,
with notice or lapse of time, or both, would constitute a default)
under,
or result in the breach of, any indenture, agreement or other
instrument to
which Additional Party is a party or by which it is bound or which
is
applicable to it or any of its assets, which default or breach, in
Additional Party's good faith and reasonable judgment, is likely to
affect
materially and adversely either the ability of Additional Party to
perform
its obligations under this Agreement or the financial condition of
Additional Party.
(iii) Additional Party has full power and authority to enter into
and
perform under this Agreement, has duly authorized the execution,
delivery
and performance of this Agreement, and has duly executed and
delivered this
Agreement.
(iv) Assuming due authorization, execution and delivery hereof by
the
other parties hereto, this Agreement constitutes a valid, legal and
binding
obligation of Additional Party, enforceable against Additional
Party in
accordance with the terms hereof, subject to (A) applicable
bankruptcy,
fraudulent transfer, insolvency, reorganization, moratorium and
other laws
affecting the enforcement of creditors' rights generally, and (B)
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.
(v) Additional Party is not in violation of, and its execution and
delivery of this Agreement and its performance under and compliance
with
the terms hereof will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or demand
of any
federal, state or local governmental or regulatory authority, which
violation, in Additional Party's good faith and reasonable
judgment, is
likely to affect materially and adversely either the ability of
Additional
Party to perform its obligations under this Agreement or the
financial
condition of Additional Party.
(vi) There are
